Dysart v. Youngblood., 4466.

• Decision Date: 30 April 1940
• Docket Number: No. 4466.,4466.
• Parties: DYSARTv.YOUNGBLOOD.
• Court: New Mexico Supreme Court

44 N.M. 351

102 P.2d 664

DYSART

v.YOUNGBLOOD.

No. 4466.

Supreme Court of New Mexico.

April 30, 1940.

Appeal from District Court, McKinley County; Irwin S. Moise, Judge.

Suit by E. H. Youngblood against S. Dysart to foreclose a mechanics' lien. From an adverse judgment, defendant appeals.

Affirmed.

The statute making land upon which any building, improvement or structure is constructed, and so much land as may be required for the convenient use and occupation thereof, subject to a mechanics' lien, lodges with the trial court a wide discretion in determining the extent of the land about a structure which may be reasonably required for the convenient use and occupation of it, and does not limit the lien to the land necessarily needed for the improvement. Comp.St.1929, § 82-204.

M. J. McGuinness, of Albuquerque, for appellant.

Harris K. Lyle, of Gallup, for appellee.

MABRY, Justice.

Suit was filed by appellee Youngblood to foreclose a mechanics' lien against the property of appellant Dysart, consisting of a “dry” water well and the land upon which the same was located.

The cause was tried to the court, judgment given appellee and a lien established upon the well, designated as a “structure” within the contemplation of the statute, and the section of land upon which it was located. The theory upon which the land was included was that it was needed for the “convenient use and occupation” of the well. Mrs. Dysart, defendant below, brings this appeal.

Appellant defended in the action on the ground that appellee breached his contract to drill, case and finish the well, and that she was not indebted to him in any sum, particularly not for the sum claimed. She disputed the right of appellee to claim and establish a lien upon the well or the land surrounding it for the reason that the lien law does not give such right of lien upon a water well-that it does not come within the term “structure” as contended for by appellee.

The trial court found appellee was employed by appellant to drill the well in question. It was found that this was to be a water well unless oil might be struck at the depth to which parties had contracted the well should be drilled; that appellant did not breach his contract, that his claim in the sum allowed was due and unpaid, and that he should have a lien for his labor and the material he employed in the undertaking. There is substantial evidence to support the findings that the account was owing and unpaid, and, upon that point, we inquire no further.

The two remaining questions of importance are: (a) Is a water well a “structure” within the meaning of our statute? (Sec. 82-202, N.M.Comp.St. of 1929) and (b): Did the court correctly determine the “use and occupation” requirement in fixing the lien to cover the entire section of land upon which the well was drilled?

The statute under which the lien is claimed, Sec. 82-202, supra, provides: “Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon road or aqueduct to create hydraulic power, or any other structure, or who performs labor in any mining claim, has a lien upon the same for the work or labor done or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent, and every contractor, sub-contractor, architect, builder, or other person having charge of any mining, or of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purposes of this article.”

Appellee cites and relies principally upon Albuquerque Foundry & Machine Works v. Stone, 34 N.M. 540, 286 P. 157, for authority for his position that a water well is a “structure” made lienable by the New Mexico Act, and upon Ford v. Springer Land Association, 8 N.M. 37, 41 P. 541, for support for its claim that the land subjected to the lien was properly included.

In holding the lien statute applied to exploration work in drilling for oil we observed in the Albuquerque Foundry & Machine Works case, supra [34 N.M. 540, 286 P. 158]: “Is an oil well a ‘structure’? We think so. Considering the evident intention of the Legislature to protect laborers and materialmen against loss, it would seem absurd to say that one who labors on a mine, driving a tunnel or sinking a vertical shaft in search of gold or silver, is protected, and yet another, who labors on a well or hole in the ground, sunk to discover another mineral called oil, is not protected. We are accustomed to think of a ‘structure’ as something above ground, in the nature of a building, but this is not necessarily the only meaning of the word. As it is used in our statute, the term is broad and should he construed in connection with the preceding terms which extend the subjects of the statute over a wide range. The authorities are not all in accord in holding a well to be a ‘structure,’ but the peculiar wording of our statute leads us to conclude that it should be so construed.”

It is conceded that there is a clear division of authority upon the question where statutes like our own are involved. Each of the parties hereto claim for their respective sides the weight and logic of authority. We do not undertake to assemble and re-appraise the cases relied upon for numbers or reasoning. It is obvious that if a water well is to come within the definition of our statute it is because of the reliance which may be placed upon the word “structure”. Neither oil or water wells are specifically named. Appellant cites considerable authority to sustain her claim that a water well is not a “structure”. Many of these cases could have been relied upon to show that a dry hole drilled in exploring for oil would likewise not come within that definition. But, we have held that a well or hole in the ground sunk to discover oil or other mineral is a structure within the meaning of our statute. The cases cited by appellant do not persuade that there should be a distinction made between a hole in the ground made in exploring for water and the same character of a hole in the ground made when exploring for oil, once we have held that either one of the two is to be deemed a structure. The cases from Nebraska and Arkansas, cited and relied upon by appellant in this connection, may be distinguished. In Nebraska, the statute uses the word “appurtenances”, instead of “structure”. The Iowa court in Hoppes v. Baie, 105 Iowa, 648, 75 N.W. 495, suggests the statutory difference is sufficient to distinguish the Nebraska holdings. Likewise, the Arkansas act does not use the word “structure” in this connection, but makes subject to the lien “all the right and title of the defendant to the land on which any building, tenement, or edifice shall be erected ***.” See Guise v. Oliver, 51 Ark. 356, 11 S.W. 515.

While the courts are not at all unanimous, there is ample authority to support the holding in the Albuquerque Foundry case, supra, to which we are now committed.

If the word “structure” as used in our statute means one kind of a well, an oil well, there is no good reason to say that it does not mean the other kind-a water well.

Water wells are quite as essential to the improvement and development of land in this portion of the West particularly, as most any structure or improvement that comes readily to mind. Water is indispensable in the work of exploring for oil in the area in question. Where there is no surface water supply available it is the one absolute pre-requisite to oil field exploitation. Oil, like gold and...