Eccles v. Will.

• Decision Date: 21 January 1918
• Docket Number: No. 2057.,2057.
• Citation: 170 P. 748,23 N.M. 623
• Parties: ECCLES, Artesian Well Suprevisor,v.WILL.
• Court: New Mexico Supreme Court

23 N.M. 623

170 P. 748

ECCLES, Artesian Well Suprevisor,

v.WILL.

No. 2057.

Supreme Court of New Mexico.

Jan. 21, 1918.

Syllabus by the Court.

The lien authorized by section 266, Code 1915, for the expense incurred for repairs and work upon an artesian well, in preventing the waste of water by such well, does not take precedence over a prior recorded mortgage; the statute being silent upon the question. Such a lien is not a tax, based upon the theory of benefits, but is for the cost and expense of doing an act which it was the legal duty of the owner to do, and which he failed to do, and is referable to the police power.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Tax.]

Error to District Court, Chaves County; McClure, Judge.

Proceeding by W. R. Eccles, Artesian Well Supervisor of Chaves County, against O. A. Will. From a judgment of the district court giving precedence to the lien of defendant's mortgage over the statutory lien, the plaintiff brings error. Affirmed.

See, also, 167 Pac. 726.

The lien authorized by section 266, Code 1915, for the expense incurred for repairs and work upon an artesian well, in preventing the waste of water by such well, does not take precedence over a prior recorded mortgage; the statute being silent upon the question. Such a lien is not a tax, based upon the theory of benefits, but is for the cost and expense of doing an act which it was the legal duty of the owner to do, and which he failed to do, and is referable to the police power.

C. O. Thompson, of Roswell, and K. K. Scott, of Silver City, for plaintiff in error.

L. O. Fullen and W. A. Dunn, both of Roswell, for defendant in error.

ROBERTS, J.

This writ of error was sued out for the purpose of reviewing the action of the trial court in holding that defendant in error's mortgage was superior to the lien authorized by section 266, Code 1915. This section of the statutes is a part of a chapter which regulates artesian wells, and authorizes the artesian well supervisor, therein provided for, to make repairs upon artesian wells, or to plug the same in certain cases. The section reads:

“The expenses incurred for the repairs of work aforesaid shall become a lien on the land, where such well or reservoirs are situated, and upon such well or reservoir, and the artesian well supervisor within twenty days after the completion of said repairs or work upon any well or reservoir, shall file for record with the county clerk of the county in which said land, well or reservoir is situated, a statement of the expenses or the amount thereof, the name of the owner or the reputed owner of the land, well or reservoir, and a description of the land, well or reservoir, to be charged with the lien, sufficient for the identification, which claim must be verified by the oath of the artesian well supervisor.”

The next section provides for the recording of the lien by the county clerk, and section 268 authorizes the well supervisor to foreclose the lien, and provides:

“And the procedure therefor shall be the same as provided by law for the sale of real estate under foreclosure of mortgage.”

The statute was construed by this court in the case of W. R. Eccles, Artesian Well Supervisor, etc., v. E. P. and C. G. Ditto, 167 Pac. 726, and this writ of error is prosecuted by the well supervisor to review the action of the district court in that case in giving precedence to the lien of defendant in error's mortgage over the statutory lien. The mortgage was executed and recorded prior to the making of the repairs. In this state it is well settled that a mortgage is merely a lien on, and passes no estate or interest in. the mortgaged premises. Stearns-Roger Co. v. Aztec Co., 14 N. M. 300, 93 Pac. 706; Cleveland v. Bateman, 21 N. M. 675, 158 Pac. 648. The priorities of statutory liens are generally regulated by the statutes creating them (25 Cyc. 679), and where the statute authorizes the lien, and provides for its filing in the office of the county recorder, but is silent as to its priority, it takes effect from the date it is so filed, unless the statute makes it effective from the time the work is commenced, or other act done, and it does not take precedence over a prior recorded mortgage or other lien, unless so provided by statute. A statutory lien cannot be given priority over a mortgage existing and of record before the enactment of the statute creating the lien. 25 Cyc. 679.

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