Cary Hardware Co. v. McCarty

• Decision Date: 11 October 1897
• Citation: 50 P. 744,10 Colo.App. 200
• Parties: CARY HARDWARE CO. et al. v. McCARTY et al.
• Court: Colorado Court of Appeals

50 P. 744

10 Colo.App. 200

CARY HARDWARE CO. et al. v. McCARTY et al.

Court of Appeals of Colorado

October 11, 1897

Error to district court, Lake county.

Action by E.J. McCarty and James Moore, co-partners, and others against the Cary Hardware Company and others. There was a decree for plaintiffs, and certain defendants bring error. Affirmed.

This was an action instituted by defendants in error for foreclosure of a mechanic's lien upon the property of the Holden Smelting & Refining Company. In October, 1890, John M. Maxwell, as trustee for the owners of United States mineral survey No. 158, in California mining district, Lake county, Colo., executed to Henry H. Norton a written lease for a slag dump situate upon said survey "together with the free right upon said survey, and egress over, across, and upon said United States survey No 158, as the same may be necessary for the purpose of working said slag dump, and removing therefrom the material of which said slag dump is composed, and also five acres of the surface of said survey No. 158, for the purpose of erecting such buildings and machinery thereon as may be necessary for treating said slag dump, said five acres to be located contiguous and adjacent to said slag dump." The lease was to continue for a term of five years, with an option to the lessee for an extension of two years. The consideration was that lessee raise and treat for the extraction of minerals therefrom the slag in the dump, and pay to lessor, as royalty, 25 per cent. of the proceeds arising from such treatment or sale to smelters or ore buyers. It was stipulated in the lease that the lessee should not assign the same or any interest thereunder without the written assent of the lessor, and that he should not "allow any person not in privity with the parties hereto to enter into or hold possession of the said premises under any pretense whatever." In December, 1891, Norton entered into a written contract with Edward R. Holden, whereby the latter agreed to take the slag from the dump, and treat it, and for this purpose was given the exclusive right to erect upon the leased premises such buildings and machinery as might be necessary, and to use the same during the entire term of the lease and the extension thereof. The other conditions of the contract were substantially the same as those contained in the lease to Norton, except that Holden was to pay a larger royalty. The language of the contract bearing upon the grant of the right to Holden to erect buildings and occupy the premises was as follows: "Now, therefore, in consideration of the covenants and agreements on the party of the second part hereinafter set forth, the party of the first part agrees to give, and hereby does give and grant, unto said second part, the exclusive right under him, and subject to all the restrictions in said lease to first party, to erect machinery and works of such character as to the second party shall seem best, upon said leased premises, adjacent and contiguous to said slag dump described in said lease, to be used by the second party during the entire term of the said lease and the extension thereof." Thereafter, on April 30, 1892, Holden, with the written consent of Norton, assigned his contract or agreement with Norton to the Holden Smelting & Refining Company, in consideration that it fulfill the covenants therein on his part. Under this authority, and for the purpose of treating the slag dump, the Holden Smelting & Refining Company caused to be erected on the described premises the necessary buildings, and purchased and placed therein the proper machinery, used in a smelter plant, and required for the reduction of the mineral bearing ores taken from the dump. Plaintiffs, as original contractors, claim to have furnished materials for, and to have done work and labor upon, said plant, to the amount and value of about $11,000, upon which they received payment to the amount of about $6,500. For the balance they claimed a lien upon the premises; and upon July 10, 1893, within three days after their last work was alleged to have been done and materials furnished, they filed the required lien statement in the office of the clerk and recorder of Lake county. Defendants the Williams Lumber Company and H.C. Dimick were also claimants of liens under the mechanic's lien acts. All other defendants were claimants of liens created by the levy of writs of attachment issued in suits begun by them against the smelting company. None of the attachment lien claimants appeared except plaintiffs in error, the Carbonate National Bank of Leadville and the Cary Hardware Company, who bring the cause to this court on error, and seek to reverse the decree of the district court in favor of the mechanic's lien claimants.

Chas. Cavender and L.S. Smith, for plaintiffs in error.

A.T. Gunnell, Phil O'Farrell, and F.E. Purple, for defendants in error.

WILSON J. (after stating the facts).

It is conceded that, whatever may be the rights of the parties to this action who claim liens under the mechanic's lien act, they are measured and controlled by the statute of 1883, as amended by the act of 1889. The later enactments of the legislature on this subject do not apply to the case at bar. It must also be conceded to be the settled policy in this state, as declared by the highest judicial authority, to favor the enforcement of mechanics' liens when the lien has once attached, by a liberal construction of the statute, so as to advance its objects. Barnard v. McKenzie, 4 Colo. 252; Williams v. Canal Co., 13 Colo. 478, 22 P. 806; Cannon v. Williams, 14 Colo. 23, 23 P. 456; Canal Co. v. Engley, 18 Colo. 394, 33 P. 153; Small v. Foley, 8 Colo.App. 441, 47 P. 64. We do not regard Canal Co. v. Flinn, 3 Colo.App. 382, 33 P. 1006, and Rice v. Carmichael, 4 Colo.App. 86, 34 P. 1010, as being in conflict with these cases, when the facts upon which these respective opinions were based are considered. The language of the court in both cases applies to antecedent acts, which the statute imperatively requires to be done by the party seeking to establish a lien, before the lien is created. In such case it is correct to say that the law should be strictly construed, to the extent that no act required to be done and essential to constitute a lien may be omitted. The law will be liberally construed so far as the enforcement of the lien is concerned, but, to lay the foundation for this special and peculiar relief, there must be a substantial compliance with all material requirements of the statute. Cannon v. Williams, supra; Railroad Co. v. Harris, 12 Colo. 229, 20 P. 764. Much of the seeming conflict in authority as to the rule for the construction of mechanic's lien statutes is more apparent than real. It arises in many instances from a neglect to scrutinize closely the special circumstances of the case under review and the particular part of the statute construed, and also from the fact, often overlooked, that there are material differences in the statutes of the various states. It is too frequently asserted broadly and hastily that mechanic's lien statutes are in derogation of the common law, and therefore subject to the well-known canon of construction that they must be construed strictly. This is true as to parts of such statutes, but it also may be, and invariably is, the case as to the greater portion of the same statute that its provisions are remedial in their nature, and hence, according to a rule of construction equally well settled, should be liberally construed. If the facts of each case are thoroughly investigated with reference to this distinction, the opinions of courts can be reconciled in many instances where they would appear at first glance to be in direct conflict. No inflexible rule of either strict or liberal construction can be laid down which will be applicable to every part of such a statute, in the absence of a provision in the statute itself as to how it shall be construed. Kezartee v. Marks, 15 Or. 529, 16 P. 407; Boisot, Mech. Liens, 35.

It is not disputed that the smelting company erected the improvements described in the complaint, nor that the mechanic's lien claimants performed work and labor thereon, and furnished materials therefor. It is strenuously insisted, however, that they are not entitled to liens, nor to a decree therefor, for reasons that will fully appear during the course of this opinion. The first controverted question to be determined is: Did the smelting company have such an interest or estate in the land upon which the improvements were constructed as to bring the case within the provisions of the lien statute? It is provided in this statute (Sess.Laws 1889, p. 247) that, "except when otherwise indicated, any person having an assignable transferable or conveyable interest, or claim in or to any land, building structure or other property mentioned in this act, shall be deemed an owner." It is urged by plaintiffs in error that the smelting company had no such interest in the land; that its sole interest or claim to any right in connection therewith was derived from the agreement or contract entered into between Norton and Holden, which was subsequently assigned by the latter, with the consent of the former, to the company; and that this constituted only a license to do certain acts upon the premises. Per contra, it is contended by plaintiff that the company had a leasehold estate in the land, or an easement, or, if not, a right of possession, which was assignable. A license, as affecting real estate, is defined to be a permission or authority to do a particular act or a series of acts upon another's land without possessing an estate therein. 3 Kent, Comm. 452; And. Law Dict. Ordinarily, it has no fixed term or duration...