Kidder v. Nekoma Lumber Co.

• Decision Date: 30 October 1952
• Citation: 249 P.2d 754,196 Or. 409
• Parties: KIDDER v. NEKOMA LUMBER CO. et al.
• Court: Oregon Supreme Court

Page 754

249 P.2d 754

196 Or. 409

KIDDER v. NEKOMA LUMBER CO. et al.

Supreme Court of Oregon.

Argued and Submitted Oct. 16, 1952.

Decided Oct. 30, 1952.

Herbert W. Lombard, of Cottage Grove, for appellant. On the brief was John H. Horn, of Cottage Grove.

Richard Bryson, of Eugene, for respondents. On the brief were Bryson, Riddlesbarger & Bryson, Eugene.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE, WARNER and TOOZE, JJ.

WARNER, Justice.

This is a suit to foreclose a logger's lien. The plaintiff-appellant rendered services in two capacities, first, in scaling while in the pond the logs hereinafter referred to and, second, in acting as a watchman to look after and care for the logs so scaled and while they were still in the same pond. To insure payment for this labor, plaintiff filed what is commonly known as a logger's lien.

The defendant Hansen Pacific Lumber Corp. had, in the first instance, obtained and secured the logs and thereafter delivered them afloat to the pond of the defendant Nekoma Lumber Co. The notice of lien, which is appended as an exhibit to plaintiff's complaint, names both of said defendants as the reputed owners of said logs but states that the plaintiff's employment was contracted by Nekoma Lumber Co.

Subsequent to the filing of the lien, the defendant Hansen Pacific Lumber Corp. secured the release of the logs by filing a bond under the provisions of § 67-1310, O.C.L.A. On this bond the defendant United Pacific Insurance Company is surety. Shortly after filing his lien, plaintiff commenced a suit to foreclose. Hansen Pacific Lumber Corp. and the insurance company joined in a demurrer to plaintiff's complaint on the ground that it did not state facts sufficient to constitute a cause of suit against them. Although duly served, the defendant Nekoma Lumber Co. did not appear. The demurrer of the other defendants was sustained; and upon plaintiff's failure to plead further, his complaint was dismissed as to them. From this decree, plaintiff appeals.

Section 67-1301, O.C.L.A., under which the lien was filed, provides:

'Every person performing labor upon or who shall assist in obtaining or securing sawlogs, spars, piles, cordwood, or other timbers, has a lien upon the same for the work or labor done upon or in obtaining or securing the same, whether such work or labor was done at the instance of the owner of the same or his agent. The cook in a logging, or other camp, and any and all others who may assist in or about a logging, or other camp maintained for obtaining or securing sawlogs, spars, piles, cordwood, or other timber, shall be regarded as a person who assists in obtaining or securing the sawlogs, spars, piles, cordwood, or other timber herein mentioned.'

One of defendants' reasons for assailing the complaint is predicated upon the proposition that the notice of lien contains lienable and nonlienable items not segregated. The portion of the notice of lien so challenged reads as follows:

'* * * That the name of the owners, or reputed owners is Nekoma Lumber Co. and Hansen Pacific Lumber Corp., that Hal Hildebrant and Kenneth Gray of Nekoma Lumber Co., employed said A. E. Kidder to perform such labor and render such assistance upon the following terms and conditions: to scale said logs as same delivered to pond, to care for logs in pond and to watch said pond and to keep said logs in safe condition, and to watch same. at the wage of $2.00 per hour 48 hours per week. and that said work was done for the benefit of all defendants. that said contract has been faithfully performed and fully complied with on the part of said A. E. Kidder who performed labor upon and assisted in cutting and getting out said logs for the period of 148 days; that such labor and assistance were so performed and rendered upon said property between the 21st day of June 1950, and the 15th day of November 1950; and the rendition of said services was closed on the 15th day of November 1950, and thirty days have not elapsed since that time; that the amount of claimant's demand for said services is 770 1/2 hrs at $2.00 per hour or the sum of $1541.00 and 71 hrs at $3.00 per hour overtime or the sum of [$]213.00 or a total sum of $1754.00 that no part thereof has been paid, except $815.00 [sic] in various payments and there is now due and remaining unpaid thereon, after deducting all just credits and offsets the sum of $1139.00 in which amount he claims a lien upon said property.'

The decisive question in this matter is whether or not plaintiff's services as a scaler fall within the purview of § 67-1301, O.C.L.A. If the answer is in the negative, then it follows that the lien must fail, for if we assume that plaintiff's services as a watchman are protected by that section or by § 67-1302, O.C.L.A., then it is obvious from the face of the lien that there has been a commingling of lienable and nonlienable items impossible of segregation and, therefore, fatal to the validity of the claimed lien. Phillips v. Graves, 139 Or. 336, 349, 9 P.2d 490, 83 A.L.R. 1; McKinley v. Tice, 129 Or. 190, 196, 276 P. 1110; Spratt v. Brown-Petzel Lumber Co., 105 Or. 672, 680, 210 P. 700.

At the very threshold of our inquiry we are confronted with a determination of what is the proper rule of construction to apply when ascertaining what persons or classes of persons are beneficiaries under a statutory lien of this kind. Plaintiff urges that a liberal construction is in order. Defendants, to the contrary, argue for a strict construction. The answer must be resolved in favor of a strict construction when seeking to discover, as here, who can enjoy the status of lienor. Phillips v. Graves, supra, 139 Or. at page 347, 9 P.2d at page 494; McKinley v. Tice, supra, 129 Or. at page 193, 276 P. at page 1111. However, when it is found that a given claimant is entitled to invoke the beneficent provisions of a given lien law, then the statute is thereafter liberally construed in favor of such claimant. McKinley v. Tice, supra, 129 Or. at page 194, 276 P. at page 1111.

Our most recent statement on this point will be found in Timber Structures v. C. W. S. Grinding & Machine Works, 191 Or. 231, 246, 229 P.2d 623, 629, 25 A.L.R.2d 1358, where we said:

'* * * a claimant to such a lien must in the first instance bring himself clearly within the terms of the statute. The statute is strictly construed as to persons entitled to its benefits and as to the procedure necessary to perfect the lien; but when the claimant's right has been clearly established, the law will be liberally interpreted toward accomplishing the purposes of its enactment. * * *'

In Pilz v. Killingsworth, 1891, 20 Or. 432, 26 P. 305, this court has occasion to construe § 3676, Hill's Code (now § 67-108, O.C.L.A.) giving a lien for work done and for materials furnished for improving a city or adjoining street. Mr. Justice Robert Bean there said 20 Or. at page 435, 26 P. at page 306:

'* * * The object and purpose of the act is to protect those persons who by their labor, skill, or material have contributed to the enhancement in value of the owner's property, and this object should be kept in view in interpreting the language used. * * *'

We think the words of Mr. Justice Bean are applicable here. It is equally apparent to us that the object and purpose of the logger's lien act was to protect those persons who labor in and around logging camps in what are commonly known as logging operations and who, by their labor and skill in some manner connected with and incidental to the conversion of timber into logs, contribute to the enhanced value of the logs produced from the timber and, as we shall hereafter demonstrate, timber which is within the area of such an operation.

Assuming for the moment that plaintiff's labor and services were rendered within the bounds of a logging camp, we move to consider whether or not a scaler is entitled to invoke the benefits of § 67-1301, O.C.L.A.

The right to a laborer's lien is statutory and, in the absence of a specific law, such a right would not exist; one claiming the benefit of a lien statute must bring himself clearly within its terms. Boise-Payette Lumber Co. v. Dominican Sisters, 102 Or. 314, 319, 202 P. 554, and cases there cited; First Nat. Bank of Union v. Wegener, 94 Or. 318, 342, 181 P. 990, 186 P. 41.

A scaler has been defined as 'An expert person employed to determine the number of board feet and the per cent of unsound timber.' 54 C.J.S., Logs and Logging, § 1(i), page 677. Also see Connecticut Valley Lumber Co. v. Stone, 2 Cir., 212 F. 713, 715; State ex rel. Hospes v. Lumberman's Board of Exchange, 33 Minn. 471, 23 N.W. 838.

Common knowledge, as well as the foregoing definition, teaches that scaling does not comprehend assistance "in obtaining or securing sawlogs". Puget Sound Log Scaling & Grading Bureau v. Danaher Lumber Co., 121 Wash. 309, 209 P. 530, 531. Therefore, if plaintiff is entitled to a lien for his work as a scaler, it must be clear that scaling is equivalent to 'performing labor upon * * * sawlogs', in the sense...