Clark v. North

• Decision Date: 30 April 1907
• Citation: 131 Wis. 599,111 N.W. 681
• Parties: CLARK v. NORTH.
• Court: Wisconsin Supreme Court

131 Wis. 599

111 N.W. 681

CLARK

v.NORTH.

Supreme Court of Wisconsin.

April 30, 1907.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Action by F. B. Clark against Norman North. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action to enforce a mechanic's lien upon the lands described for 245 feet of casing or tubing of the reasonable value of 60 cents per foot put into a well drilled by the plaintiff thereon between March 20, 1906, and April 13, 1906. The complaint, among other things essential in such cases, alleges, in effect, that prior to March 20, 1906, the defendant entered into an optional contract with one Rodgers, whereby the defendant optioned the lands therein described to Rodgers, on condition that Rodgers would drill a hole thereon at a place chosen by the defendant, at his own expense; that the plaintiff went to the premises of the defendant with machinery to do the work, and so informed the defendant; and that Rodgers would not pay for the casing or tubing, whereupon the defendant agreed to pay the same and located the place where he desired the well to be located. The answer admits that the defendant was the owner of the premises, but otherwise denies each and every allegation of the complaint. At the close of the trial, the court found, as matters of fact, in effect: (1) That the defendant is the owner of the 40 acres of land described and has been during all the times therein mentioned; (2) that between March 20 and April 13, 1906, the plaintiff drilled a well upon the land described; (3) that such well was drilled upon the order of one William C. Rodgers, who paid the plaintiff for drilling the same, but that neither said Rodgers nor any other person has paid the plaintiff for the tubing placed in the well so drilled by the plaintiff, and that such tubing is reasonably worth $147; (4) that, when the plaintiff went to drill the well, he told the defendant that Rodgers had sent him to drill the well, and asked the defendant who was to pay for the casing; that the defendant then told the plaintiff that Rodgers was to furnish the well complete, and that the defendant would not pay for anything in connection with the well; (5) that after such conversation the plaintiff drilled the well in question at the place designated by the defendant; (6) that the plaintiff duly filed his claim for lien, as required by law, May 21, 1906. And as conclusions of law the court found, in effect, that the plaintiff has no cause of action, and that the lands described be discharged from such lien and claim of lien, and that the defendant have and recover his costs and disbursements in this action to be taxed according to law, and ordered judgment to be entered accordingly. From the judgment so entered dismissing the plaintiff's complaint, the plaintiff brings this appeal.Grotophorst, Evans & Thomas, for appellant.

Dithmar & Carow, for respondent.

CASSODAY, C. J. (after stating the facts).

Undoubtedly the statute gives to every person who performs any work or labor, or furnishes any material in digging a well, a lien upon the interest of the owner of any such structure, “or of the interest of the person causing such work or labor to be done, or such materials * * * to be furnished, in and to the land upon which the same is situated, not exceeding 40 acres”; and also provides that “such lien * * * shall also attach to and be a lien upon the real property of any person upon whose premises such improvements are made, such owner having knowledge thereof and consenting thereto, and may be enforced as provided” therein. Section 3314, St. 1898. This last provision was incorporated into the section by the amendment of 1885. Chapter 349, p. 322, Laws 1885.

The important question in the case is whether upon the facts in the record the plaintiff is entitled to a lien by virtue of that amendment. Seven years prior to that enactment, it was held by this court that no lien could be enforced for a building erected on the land of a married woman, under a contract with her husband, in his own name, and not as her agent, notwithstanding the building was so constructed “with the full knowledge, consent, and approbation” of the wife, who daily viewed and inspected the work while in process of construction. This was on the ground that there was no personal liability of the wife. Lauer v. Bandow, 43 Wis. 556, 28 Am. Rep. 571. Such ruling was followed by other cases to the same effect: Leismann v. Lovely, 45 Wis. 420;Wright v. Hood, 49 Wis. 235, 5 N. W. 488;Challoner v. Bouck, 56 Wis. 652, 656, 14 N. W. 810;Engfer v. Roemer, 71 Wis. 11, 15, 36 N. W. 618;Heath v. Solles, 73 Wis. 217, 222, 40 N. W. 804, 806. This last case was decided three years after the amendment, and it is therein stated, in the opinion of Mr. Justice Taylor, that the amendment “was intended to change the law as theretofore existing in this state, as interpreted by the decisions of this court.” It is there further said that: “If the owner permits a husband or wife, child, parent, or a stranger to erect a building on his or her land, with his or her knowledge and consent, under the clear meaning of the statute his or her interest in the real estate is charged with a lien for the unpaid work or materials.” To the same effect: North v. La Flesh, 73 Wis. 520, 529, 41 N. W. 633;Edwards & McCulloch Lumber Co. v. Mosher, 88 Wis. 672, 676, 60 N. W. 264. In a later case it was held, in effect, that where the contract for the improvement of a building owned by a wife was made by the husband in his own name, and not as agent, without any...