Durkheimer v. Copperopolis Copper Co.

• Decision Date: 15 November 1909
• Citation: 55 Or. 37,104 P. 895
• Parties: DURKHEIMER v. COPPEROPOLIS COPPER CO. et al.
• Court: Oregon Supreme Court

104 P. 895

55 Or. 37

DURKHEIMER v. COPPEROPOLIS COPPER CO. et al.

Supreme Court of Oregon

November 15, 1909

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Action by M. Durkheimer against the Copperopolis Copper Company and others. A demurrer was sustained as to certain causes of action and overruled as to others, and all parties appeal. Affirmed.

This is a suit to foreclose certain laborers' liens upon mining property in Grant county. Plaintiff sued for himself and as assignee of certain claimants, whose lien claims had been transferred to him. There are five liens involved, and each is set out as a separate cause of suit. The first cause is upon a lien filed by plaintiff for provisions, hardware, and supplies furnished by him to the defendant company. The second cause is upon a lien filed by W.W. Gibbs for labor as superintendent and general manager of the Copperopolis mine. The third cause is upon a lien for work and labor performed by Mrs. I.B. Gibbs in cooking for the employers at the mine. The fourth cause is upon a lien for work and labor performed upon the mine by W.O. Gibbs. The fifth cause is upon a lien for provisions furnished the mine by D. Walter Fisk. A demurrer was filed to each cause of suit, and sustained as to the second and third causes and overruled as to the others. Plaintiff declined to amend the complaint, and defendant amended as to the first, fourth, and fifth causes, and a trial was had resulting in a decree for plaintiff on each of them. Plaintiff appeals from the decree of the court sustaining a demurrer to the second and third causes, and defendants appeal from the decree in favor of plaintiff on the other counts. That portion of the notice of lien of W.W Gibbs which is necessary to an understanding of the point raised by the demurrer reads as follows: "Notice is hereby given that I, W.W. Gibbs, of Prairie city, Oregon have performed labor and rendered services in Grant County Oregon, for the Copperopolis Copper Company, a private corporation, organized under the laws of the state of Oregon and engaged in the mining business near Prairie City, in Grant county, Oregon; that said services consisted in working as superintendent and general manager of the following described mining property, situate near Prairie City in Grant county: [Here follows a description of the property.] That the said Copperopolis Copper Company, a private corporation, was and is the owner and reputed owner of the above-described mining property upon which said labor and services was performed by this plaintiff." The lien further shows that claimant was employed by the board of directors of which he was one at the agreed price of $300 per month, and that a balance is due him of $4,800, for which he claims a lien. Other necessary facts appear in the opinion.

A.D. Leedy, for respondents Copperopolis Copper Co.

McBRIDE J. (after stating the facts as above).

The sufficiency of W.W. Gibbs' lien depends upon the construction of section 5668, B. & C.Comp., as amended by the Sess.Laws 1907, p. 294. So much of the amended section as is necessary to cite here reads as follows: "Every person who shall perform labor upon *** any mine, lode, mining claim *** shall have a lien," etc. Section 5669, as amended, reads as follows: "It shall be the duty of every laborer or materialman claiming the benefit of this act, within sixty days after he has ceased to labor thereon from any cause, or has ceased to furnish materials therefor, to file with the county clerk of the county," etc. Laws 1907, p. 295. If the superintendent and general manager of a mine is a "person performing labor upon a mine" within the meaning and intent of this statute, his lien is otherwise unobjectionable, and the demurrer should have been overruled. The decisions of the courts are not harmonious, and slight differences in the wording of the statutes render many of them inapplicable. We are of the opinion that the words "every person who shall perform labor," used in the statute, are designed to designate ordinary laborers who perform actual physical toil, common laborers and those who are required to use their hands or muscles in actual work, and do not include that higher and usually better paid class of employés whose duties are confined to superintendence and management, unless such class is expressly mentioned in the statute. We think section 5669 defines the preceding section when it provides that "every such laborer or materialman" shall take certain steps in order to perfect his lien. The intent of the statute is to protect a class of persons rarely able to protect themselves, and who, from the laborious nature of their occupations and the necessity of earning their daily bread by daily toil, have not time, opportunity, or intelligence sufficient to inform themselves as to the financial responsibility of the parties for whom they work. To say that a general superintendent and manager can have a lien for his services would be a construction that would do violence to both the language and intent of the statute, and permit those who by their situation would be able to know just the financial condition of a mine to use that information to gain an advantage over the poor fellow who was blistering his hands by actual contact with the pick and shovel. Few courts have gone to the extent of holding services purely as superintendent or manager to be lienable.

The case of W.F.T. & M. Co. v. Remick, 1 Or. 169, is cited by counsel for appellant Durkheimer in support of this contention in the case at bar. The statute under which the claim of lien was made in that case provided that "all persons performing labor for the construction of any building shall have a lien thereon." It is submitted that the term "for the construction" is far broader than the word "upon," which is used in the same connection in the case at bar. The question actually decided is stated in the syllabus, as follows: "A mechanic, who acts as overseer while performing manual labor, is entitled to a lien for all his services." The court say "Remick certainly performed 'labor for the construction' of the company's buildings, and is clearly entitled to a lien for a part, if not the whole, of such labor; and, as his services were inseparably rendered and received by the company, we think he should have a lien for his entire compensation. When time and skill are employed to supervise and direct in the construction of a building, a lien is as much deserved and required as in any other case, and beyond question it should be allowed, if actual labor is added to the other grounds of right. There is doubt as to whether an architect, or person performing labor of like nature, can hold a lien; but it is clear that, for work of any kind upon the building in its construction, the statute gives a remedy." It is evident that the actual physical labor performed by Remick was the sheet anchor that saved and preserved a lien. His labor was the principal element. The fact that he also acted as overseer was merely incidental. In Cullins...