Lewis v. Annie Creek Mining Co.

• Decision Date: 10 July 1951
• Docket Number: No. 9117,9117
• Citation: 74 S.D. 26,48 N.W.2d 815
• Parties: LEWIS v. ANNIE CREEK MINING CO. et al.
• Court: South Dakota Supreme Court

Page 815

48 N.W.2d 815

74 S.D. 26

LEWIS v. ANNIE CREEK MINING CO. et al.

No. 9117.

Supreme Court of South Dakota.

July 10, 1951.

As Modified on Denial of Rehearing Sept. 21, 1951.

Clarence P. Cooper, Lead, for plaintiff and appellant.

Hanley, Leedom and Driscoll, Rapid City, for Answering defendants and respondents.

BAKEWELL, Circuit Judge.

Appellant seeks foreclosure of a miner's lien on the mining property of the defendant, Annie Creek Mining Company, in Lawrence County. The only answering defendants, Hayes, Crary and Munger, judgment creditors of the mining company, resisted the granting of such relief, and the trial court held the lien invalid and denied foreclosure. Appellant assigns as error all fact findings, conclusions of law, and the judgment which dismisses his complaint.

The facts so far as relevant are as follows:

About July 1, 1928, appellant was employed by the Annie Creek Mining Company, a corporation, as caretaker and repairman on the Annie Creek Mine, and continued in that employment until March 17, 1942. During all the time covered by his claim for unpaid wages, his compensation was fixed by agreement between himself and the owners at $50 per month. During the last 35 months and 17 days, these wages were not paid to him, and on March 20, 1942, he filed a miner's lien covering an indebtedness of the owners to him of $1759.64. The Annie Creek Mine had been improved, developed and operated as a mine prior to the commencement of appellant's service, but during his employment no ore was removed from the mine nor was the mill operated. It was an idle though not abandoned mine.

As a part of the development of the mining property, buildings or top structures had been erected. These consisted of a mill building housing the mining machinery, in size about 60' X 40', a dwelling house, and an office building. Additional to this there was a small structure housing an electrically-operated pump, the function of which was to elevate water into a reservoir formed by a sand dam across the canyon. The evident purpose of impounding this water above the dam was to furnish fire protection for the buildings on the property.

In his employment as caretaker and repairman, the appellant had the duty of keeping this electric pump in operation, and keeping in repair the sand dam from which the sand washed down as a result of heavy rains. He also kept the snow shoveled from the roof of the mill, to prevent its crushing and collapse. This roof was made of lumber covered by sheets of flat, uncorrugated tin, about 3' X 6' in size. Due to the decayed condition of the roof lumber, these metal sheets were so insecurely attached as to cause them to frequently loosen in the wind, and from time to time appellant was required to and did replace and renail these metal sheets to the roof. Additional to these labors, he on one occasion took down the building which housed the electric motor and pump, sawed out the timbers from the sump, replaced them with new ones, rebuilt the building, and, after so doing, installed a new pump. Appellant and his family lived in the dwelling house on the property, kept a watch out for fires in the timber, and protected the property, including the mining and milling machinery, from the trespass and depredations which could be expected to result were the property unoccupied and unwatched.

From these facts the trial court found that although the plaintiff was employed by the Annie Creek Mining Company, such employment was only as a watchman or caretaker of an idle and inactive mining property, and that he performed no 'manual labor or service' thereon except such as was merely incidental to his duties as a watchman, and that 'none of such labor or service' contributed to the improvement, development or operation of the said property, and concluded as a matter of law that appellant was not entitled to a lien on the property under either the 1919 or 1939 statutes. The substance of the court's decision is that although appellant performed labor on the property, he is not entitled to a miner's lien because such labor was not furnished for the improvement, development, or operation thereof.

Liens of persons furnishing labor or other service, or materials upon or for mines and mining property, generically termed miners' liens, like those of laborers, mechanics and material men generally, are defined and regulated by statute. As to appellant's service prior to July 1, 1939, his status as a lienor is controlled by Sec. 1631, Revised Code of 1919, while for the remainder of his employment SDC 39.0701 is the applicable statute.

The first miner's lien statute is Ch. 41, Laws of 1879. This, without change, was reenacted as Sec. 2039 of the Territorial Compiled Laws of 1887. The latter was amended by Ch. 134, Laws of 1895. In the 1903 Code, these earlier statutes were superseded by Sec. 2573, Revised Political Code thereof, but this section was itself specifically amended in the same year by Ch. 182, Laws of 1903, which in turn was superseded by Ch. 51, Laws of 1909.

In Cessna v. Otho Development and Power Company, 35 S.D. 557, 153 N.W. 380, it was held that the 1909 statute was inferentially repealed by Ch. 263, Laws of 1913. The 1909 statute was reenacted as Ch. 243, Laws of 1915. This latter statute was the immediate antecedent of Sec. 1631, Revised Code of 1919.

Before considering Sec. 1631, and for the purpose of determining its meaning, let us briefly review its statutory lineage. Sec. 1, of the 1879 statute, so far as work or labor is concerned, declared a lien to one who shall 'perform any labor whatever on said mine,' or who shall 'perform any labor on any tunnel'. The reenactment of this section into Sec. 2039, Political Code of 1887, is identical except that it says 'in' instead of 'on' any tunnel.

The 1895 amendment enlarges the scope of the lien by making it read 'perform any labor in any tunnel, or other mining works', and Sec. 2573, Revised Political Code of 1903, makes no change in this language, but follows the earlier acts in providing a lien both for 'any labor whatever on said mine' and for 'any labor in any tunnel'. Ch. 182, 1903 Session Laws, substitutes for the phrase 'any labor in any tunnel,' the words 'any labor in any of said works upon said property'.

Why these statutes distinguished between labor on a mine and labor in a tunnel or 'in any tunnel, or other mining works' is not important, for, as the statute was after the 1903 amendment, one performing any labor either on a mine or in any mining works was entitled to a lien on the mine or any of its appurtenances or connected with its workings.

Ch. 51, Laws of 1909, and its reenactment as Ch. 243, Laws of 1915, represents a distinct change in phraseology from the earlier statutes, in that it provides a lien to one who shall 'perform any labor of any kind whatever' upon any mine, or 'aid in the operation and development thereof'. The broad comprehensiveness of the word 'aid' covers labor of every kind which could be done in the development or operation of a mine, including, of course, its improvement by the erection of buildings or other structures, so there was no necessity for the preceding phrase 'perform any labor of any kind whatever' except to authorize a lien for labor other than such as aided in the development or operation of the mine.

This brings us to Sec. 1631, Revised Code of 1919, which provides: 'Every miner or [any] other person who * * * shall perform any labor of any kind whatever upon said mine, or mining claim, or aid in the operation and development thereof, or shall furnish any materials of any kind whatsoever for the development or operation of such mine or mining claim, * * * or shall furnish any gas, electricity or compressed air or other force or power of any kind for the lighting, operation or development of any such mine or mining claim, shall have a first lien * * * upon such mine or mining claim * * *.'

Breaking down this statute into its separate, distinct, and several parts, it should be read as vesting a lien on a mine to every miner or other person who either:

(1) Performs labor of any kind whatever upon said mine;

(2) Aids in the operation and development thereof;

(3) Furnishes any materials of any kind whatsoever for the development or operation of such mine;

(4) Furnishes any gas, electricity, compressed air or other force or power of any kind for the lighting of any such mine; or

(5) Furnishes any such force or power for the operation or development of any such mine.

Each of these items deals separately with a particular contribution to the mine, and each item is disjoined from any other by the word 'or.' Insofar as concerns one performing labor on a mine, the statute could not be differently construed had it read, 'every miner or other person who shall perform any labor of any kind whatever upon said mine shall have a lien thereon.' It is wholly unaffected by its inclusion with liens granted for other contributions.

Of these five items, only (2), (3) and (5) are, by the terms of the statute, required to be for the 'development' or 'operation' of the mine. Labor, as mentioned in (1), may or may not be connected with development or operation, and the furnishing of power, such as electricity, vests a lien if the power is used for the lighting of a mine, without regard to whether...