Caird Eng'g Works v. Seven-Up Gold Mining Co.
| Decision Date | 14 March 1941 |
| Docket Number | No. 8004.,8004. |
| Citation | 111 Mont. 471 |
| Parties | CAIRD ENGINEERING WORKS v. SEVEN-UP GOLD MINING CO., Inc., et al. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, First District, Lewis and Clark County; Guy C. Derry, Judge.
Action to foreclose a mechanic's and materialmen's lien by the Caird Engineering Works, a corporation, against the Seven-Up Gold Mining Company, Inc., a corporation, and others. From an adverse judgment, Simon Erickson, E. H. Lindstrom, Elizabeth H. Hansbrough, Alice M. Benson, Rae M. Wentworth and Emma F. Linnenkohl and Bernard Fotheringham, trustee, appeal.
Modified and, as modified, affirmed.
Harold K. Anderson and Floyd O. Small, both of Helena, for appellants Erickson and Lindstrom.
C. E. Pew, of Helena, for appellants Hansbrough and others.
Weir, Clift & Bennett, of Helena, for Caird Engineering Works.
Toomy, McFarland & Chapman, of Helena, for Seven-Up Gold Mining Co., and Fotheringham, trustee.
W. H. Clarke and M. J. Thomas, both of Helena, for General Engineering Co.
Robert L. Word, Jr., of Helena, for George Stoner.
Paul T. Keller, of Helena, for Interstate Lumber Co.
Lester H. Loble, Hugh R. Adair, and Melvin Magnuson, all of Helena, for Ernest Palmquist.
T. J. Davis, of Butte, for General Electric Supply Corporation.
Arthur P. Acher, of Helena, for F. C. Kennett.
This action was brought by the Caird Engineering Works against the defendants to foreclose a mechanics and materialmen's lien on improvements placed upon certain mining claims by the Seven-Up Gold Mining Company as lessee.
It appears from the record that the above-named company had leases upon a number of mining claims near Lincoln, which it operated as a unit. It placed improvements upon the property consisting of a mill and other buildings. The operations proved to be unsuccessful financially, and because thereof it ceased operations. Thereafter eight mechanics and materialmen's liens asserted by that many different lien claimants, representing a total indebtedness of nearly $25,000, were filed. The lien claimants are all of the defendants above named, excepting Simon Erickson, E. H. Lindstrom, Elizabeth M. Hansbrough, Alice M. Benson, Rae M. Wentworth, and Emma F. Linnenkohl. These defendants last named are the owners of the mining claims on which the improvements were made. They question the validity of the liens and are interested because of provisions in their leases whereby upon default on the part of the lessee in carrying out the terms of the leases, the leased premises, together with all improvements thereon, should revert to the lessors.
The court sustained the liens on all of the improvements but reduced the amount of some of them. The defendants Erickson, Lindstrom, Hansbrough, Benson, Wentworth and Linnenkohl have appealed, as did also Fotheringham, trustee. The latter takes the position that he is adversely affected by the court's decree because there is not enough property to satisfy all the lien claimants and is interested in defeating the other lien claimants. A more detailed statement of the facts will be given in connection with the consideration of the contentions respecting the validity of each of the liens. We shall first discuss the contentions presented as they affect the validity of the various claims for want of proper description of the property in the notice of lien.
As before indicated, the various mining claims in question were operated as a unit. The defendant Erickson was the owner of the Beatrice claim, and defendants Erickson and Lindstrom jointly owned the Confidence and Harry claims. The Monroe and Reliable claims were owned by defendants Hansbrough, Wentworth, Benson and Linnenkohl, which group of appellants will hereafter be referred to as Hansbrough et al. A great many improvements in question were situated on the Reliable claim. There were built upon the Beatrice claim a mill and assay office; on the Confidence claim a three-room house, and on the Harry claim a pressure pump and motor. Other improvements and structures were placed upon other claims in the same locality and operated with the above-mentioned claims. Of the claims specifically named in the notice of lien of plaintiff, only two-the Monroe and Reliable-are situated in the Seven-Up Mining District. The other four are about fifty miles therefrom, and are not here involved.
The first attack made upon the plaintiff's lien, so far as defendants Lindstrom and Erickson are concerned, is that it does not sufficiently describe the property. Plaintiff's lien described the property as follows:
“The mill, plant, mining machinery, structures and equipment of said Seven-Up Gold Mining Company, Inc., located in the Seven-Up Pete Gold Mining District near the Town of Lincoln, in the County of Lewis and Clark, State of Montana, and particularly upon those mining claims, among others, described as follows:
Defendants Erickson and Lindstrom contend that this description is not sufficient upon which to base a lien upon the mill and assay office located upon the Beatrice claim, upon the three-room house located upon the Confidence claim, nor upon the pressure pump and motor located upon the Harry claim, all three of which are within the Seven-Up Mining District. It should be said in connection with the consideration of this question that the record shows that there were two other mills in the same locality on property located in the Seven-Up Mining camp. One of them was on the Confidence claim, and the other on a claim known as the Alton claim, both of which claims were under lease and operated by the Seven-Up Gold Mining Company, along with other claims above mentioned. Likewise there are situated on the Confidence claim other houses, and particularly two different three-room houses. Many of these buildings were located upon the property before the Seven-Up Gold Mining Company and its immediate predecessor started operations in that vicinity. All lien claimants are claiming a lien upon only one mill and on only one three-room house, but they assert that their liens are upon the mill located on the Beatrice claim and upon the newer three-room house on the Confidence claim. Defendants Erickson and Lindstrom contend, however, that the description in the lien is not sufficient to cover property on the Beatrice or Confidence claims.
Our statute (sec. 8340, Rev.Codes) requires the lien to contain “a correct description of the property to be charged with such lien, verified by affidavit, but any error or mistake in the account or description does not affect the validity of the lien, if the property can be identified by the description.”
This court is committed to the view that our lien statutes should receive a liberal construction to the end that the objects and purposes of the statutes may be carried out. In the case of Midland C. & L. Co. v. Ferguson, 61 Mont. 402, 202 P. 389, 390, the plaintiff was claiming a lien for materials used in the construction of a house. The notice of lien filed by the plaintiff described the building as being situated on the Northeast 1/4 of the Northwest 1/4, Section 29, Township 2 North, Range 58 East, whereas the correct description was on the Northwest 1/4 of the Northwest 1/4. The court, however, upheld the lien and said: See, to the same effect, Federal Land Bank of Spokane v. Green, 108 Mont. 56, 90 P.2d 489.
There is testimony in the record by persons familiar with the locality that, owing to the age and dilapidated condition of the other structures in the Seven-Up camp, they could identify the particular mill and buildings covered by the lien.
The lien notice had attached to it and made a part of it a list of the items going to make up the account, showing that all work was performed and materials furnished after July, 1935, and indicating what the items furnished consisted of. There was evidence that some of those items at least could be traced into the mill on the Beatrice claim and that it was apparent from inspection of the other mills that no materials went into them after 1934, and hence, was sufficient to show that the mill on the Beatrice claim was the only one complying with the description. It is proper, in considering the sufficiency of the description, to take into consideration the items going to make up the lien. Federal Land Bank v. Green, supra. Also the record shows that the mill on the Beatrice claim was distinguished from those on the Confidence and Alton claims by calling it the “Seven-up” mill. The mill on the Confidence claim was referred to by some of the witnesses, including one of the appellants, as the “Aagard” mill, while that on the Alton claim was referred to as the “ball mill.”
Defendants Erickson and Lindstrom rely upon the case of Johnson v. Erickson, ...
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