Carpenter v. Bayfield W. Ry. Co.

• Decision Date: 12 October 1900
• Citation: 83 N.W. 764,107 Wis. 611
• Parties: CARPENTER v. BAYFIELD WESTERN RY. CO. ET AL.
• Court: Wisconsin Supreme Court

107 Wis. 611

83 N.W. 764

CARPENTER

v.BAYFIELD WESTERN RY. CO. ET AL.

Supreme Court of Wisconsin.

Oct. 12, 1900.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by S. A. Carpenter against the Bayfield Western Railway Company and others. From an order overruling the demurrer of defendants the McCord Lumber Company and Soper Lumber Company, the demurring defendants appeal. Reversed.

Appeal by the McCord Lumber Company and the Soper Lumber Company from order overruling their joint general demurrer to the complaint, which alleges that the plaintiff and his assignors performed work in hauling certain logs at the employment of the Bayfield Western Railway Company, which logs belonged to the McCord Lumber Company, have now been sawed into lumber, and are located at West Superior, in Douglas county, and marked sold to the defendant the Soper Lumber Company. The specific work performed by plaintiff and his assignors was in grading, leveling, repairing, and building the logging railway of the defendant the Bayfield Western Railway Company, laying ties and rails, taking up ties and rails as soon as the timber tributary to said road had been cut and hauled, and relaying them in other places where the timber had not been hauled; that the greater portion of the work so done was performed for the purpose of hauling out, and in the hauling out, of the above-mentioned logs, but other logs were also hauled during the same period. The formal steps for establishing a lien under section 3329, Rev. St., are alleged, and a lien claimed upon the lumber sawed from the McCord Lumber Company's logs, and now supposed to belong to the Soper Lumber Company. There is no allegation as to the corporate or other character of any of the three defendants.Sanborn, Luse, Powell & Ellis, for appellants.

T. M. Thorson, for respondent.

DODGE, J. (after stating the facts).

1. The first and most important question raised by the demurrer is whether the services set forth are within the description of those for which section 3329, Rev. St., confers a lien, namely, “labor or services in cutting or hauling * * * logs, timber,” etc. This statute, it has been well said, was passed for the protection of laboring men, who, by reason of their exigencies, are generally neither able to investigate or insist upon the credit of their employers, nor, without suffering, to endure the loss of the wages upon which they depend for existence, and is therefore to receive liberal construction. The question of the character of services to which it extends has received consideration in the following cases in this state: Young v. French, 35 Wis. 111;Winslow v. Urquhart, 39 Wis. 260;Minton v. Lumber Co., 79 Wis. 648, 48 N. W. 857;Bradford v. Lumber Co., 80 Wis. 50, 48 N. W. 1105;Glover v. Lumber Co., 94 Wis. 457, 69 N. W. 62;Kendall v. Lumber Co., 96 Wis. 661, 71 N. W. 1039. In Young v. French and Winslow v. Urquhart it was held that a cook who, as one of a gang of men engaged directly upon the logs, in the one case in cutting, and in the other in driving, cooked the food for the others, was entitled to a lien for his wages, the court saying in the latter case: “He performs services in cutting and driving such logs within the meaning of the statute, as much as those who use the ax, the saw, or the team to the same end.” In Bradford v. Lumber Co., supra, claim for lien was made by one who contracted with the contractor for log driving to supply board to the latter's men. The court held him not entitled to a lien, for the reason that he was, in effect, “furnishing supplies,” which were denied a lien by express statute. It was said: “Only he who cooks the food for those employed to do work upon the timber, where the provisions are supplied by the employer, is given a lien.” This rule obviously would have as well excluded the plaintiff's cook, who performed the services, as it did exclude the plaintiff himself from lien. In Minton v. Lumber Co., supra, plaintiff, who had been one of the gang engaged in driving the logs, put in his last day in gathering up the tools which had been used on the drive. It was contended that this was not “labor in driving the logs.” The court held that it was an essential part of the work of the drive, and that he was entitled to a lien therefor. In Glover v. Lumber Co., supra, plaintiff performed work for more than a month before a sawmill started in superintending the building of an addition to the mill and putting in the machinery. After the mill started, and the sawing of the lumber in question was begun, he continued to superintend the putting in of new machinery and the making of permanent improvements to the mill, and at the same time superintending the keeping of the machinery in the mill in repair when breakage occurred. He offered no evidence as to how much of the labor was of the one character or of the other. The court held that a portion at least of the labor was not protected by a lien, that the statute gives a lien only for labor and services performed in manufacturing the lumber, and it was the plaintiff's duty to show the amount of such labor and services. He therefore was denied any recovery. In Kendall v. Lumber Co., supra, plaintiff's labor was done in driving piles and building docks and tramways for permanent use in connection with the sawmill at which the lumber in question was sawed. Such structures were necessary to the business of manufacturing logs into lumber. It was held that for such work he was not entitled to lien. The court said: “We cannot so construe the statute as to include work done in the original construction of any part of a sawmill plant to be used in manufacturing logs into lumber, and caring for the manufactured product till moved off from the mill premises. The same rule applies to permanent improvements and necessary appurtenances to the sawmill property.” In Maine, under a statute much like ours, it was held that work about the camp in filing saws, repairing sleds, keeping time, and being generally useful was not within the designation of either “cutting, felling, or hauling.” Kelley v. Kelley, 77 Me. 135. In Oppenheimer v. Morrell, 118 Pa. St. 189, 12 Atl. 307, it was held that...