Lord v. Mining Corp.

• Citation: 298 N.W. 677,68 S.D. 79
• Decision Date: 12 June 1941
• Docket Number: 8436
• Parties: RAYMOND LORD, et al, Appellants, v. BLACK HILLS MINING CORP., et al, Respondents
• Court: Supreme Court of South Dakota

68 SD 79, 298 NW 677 (1941)

RAYMOND LORD, et al, Appellants,

v.

BLACK HILLS MINING CORP.,

et al, Respondents

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County,SD

Hon. Charles R. Hayes, Judge.

#8436—Reversed.

Clinton G. Richards, Deadwood, SD

Attorney for Appellants.

W. G. Rice, B. K. Bettelheim, Deadwood, SD

Attorneys for Respondent First National Bank.

Opinion filed Jun 12, 1941, Rehearing Denied Jul 8, 1941

RUDOLPH, J.

This action was brought for the purpose of foreclosing a purported miner’s lien. The defendant, Black Hills Mining Corporation, was operating a mine under a lease, containing an option to purchase. The lease among other things provided that “any machinery, equipment, tools belonging to the lessee a period of sixty days will be given for their removal upon the termination or forfeiture of this lease.” The plaintiffs performed labor for and furnished materials to the defendant mining corporation and subsequent to the discontinuance of mining operations, but before the lease was forfeited, filed a miner’s lien against the interest of the defendant mining company in the mine and certain machinery, equipment and tools which had been placed upon the property by the defendant mining corporation in operating the mine. The single question presented by the record is whether the lien became effective. The trial court held that the lien was not effective, and plaintiffs have appealed.

Some of the history of the miner’s lien law in South Dakota is necessary to an understanding of the issues presented and to a decision. In 1903 there was enacted Chapter 182, Laws of 1903, amending Revised Political Code 1903, § 2573, relating to miner’s liens. So far as material, this section is as follows: “Every miner or other person who at the request of the owner or owners or his or their agents of any ... mine ... shall perform any labor whatever on said mine, ... or furnish [certain material] shall have a first lien upon such mine, ... and upon any property appertaining thereto made in connection with the workings of any mine, ....” This 1903 law was amended by Chapter 51, Laws of 1909, but the amendment has no bearing upon the issue here presented.

While this law was in effect, the case of Union Trust Company v. Branch Mint Operating Company, 28 SD 549, 134 NW 65, was decided by this court. In this case it was held that a miner’s lien under the 1903 law must be founded upon a contract made with the owner either directly or through his agent. This case decided that the lessee of a mine was neither the owner nor agent of the owner who could, under the miner’s lien law, charge the lessor’s property with a miner’s lien. In 1913 there was enacted Section 16, of Chapter 263, Laws of 1913, which provides: “Whoever performs labor, or furnishes any skill, material, or machinery, in or about the opening or working of any mine, at the request of the owner thereof, or of the lessee of such owner, or of any contractor with either, shall have a lien for the value thereof, upon the interest of such owner or lessee, as the case may be, in said mine and its appurtenances, which lien may be asserted and enforced as in this chapter prescribed in respect to other liens upon real estate.”

In 1915 there was passed by the legislature Chapter 243, Laws of 1915, which purported to reenact and amend the law relating to liens on mining property. So far as here material, Section 1 of this act provides: “Every miner or other person ... who, at the request of the owner or owners, or of his or their agents, of any ... mine or mining claim ... shall perform any labor ... or shall furnish [certain material] ... shall have a first lien ... upon such ... mine, mining claim, or appurtenances thereto, ....”

The 1915 act specifically repealed former provisions found in our miner’s lien statutes, but made no specific reference to Section 16, Chapter 263, Laws of 1913. Thus the law stood until the adoption of the Revised Code of 1919, wherein the 1915 law was in effect reenacted; Section 1 of that law being Section 1631, R.C. 1919. Section 16 of Chapter 263, Laws of 1913, was omitted from the 1919 code and no similar provision may be found therein.

This present action arose under the provisions of our law as set forth in Section 1631, R.C. 1919, and the specific question presented is whether the language therein found, which provides “every miner or other person who, at the request of the owner or of his agent, of any mine or mining claim, ... shall perform any labor of any kind whatever upon said mine, or mining claim, ... or shall furnish any materials of any kind ... shall have a first lien ... upon such mine or mining claim, and all buildings and machinery therein, or improvement made in connection with such mine or mining claim, or mining property or appurtenances thereto, ...,” is broad enough to give miners who work in the mine and materialmen who furnish materials at the request of the lessee of the mine, a lien upon the lessee’s interest in the mine and upon the machinery and improvements which the lessee has placed upon the mining property with the privilege of removing at the expiration or surrender of his lease.

The trial court found in Finding Number Seventh that “the defendant, Black Hills Mining Corporation, was the owner of said Lease and Option and of the following described buildings upon said property and machinery therein, improvements made in connection therewith, and mining property and appurtenances thereto, to-wit:” (property described). This finding clearly brings the property upon which the lien is claimed within the meaning and language of said Section 1631 if the word “owner” as used in that section includes the owner of a leasehold interest in the mine or mining claim. We have searched without success to find a construction placed upon a similar miner’s lien law. However, it would appear that the miner’s lien laws have been based upon the different provisions of the statutes creating mechanic’s liens. These laws relating to mechanic’s liens have quite uniformly used the word “owner” in the same sense that that word is used in our present miner’s lien statute.

It appears from some of the decided cases that statutes in some of the states expressly define the word “owner” so as to include the holder of a leasehold estate, but even without such definition most courts have construed this word as used in mechanic’s lien statutes to include the owner of a leasehold estate. Hathaway v. Davis, 32 Kan. 693, 5 P 29; Eastern Ohio Oil Co. v. McEvoy, 75 Kan. 515, 89 P 1048; Owen v. Casey et al, 48 Wash. 673, 94 P 473; Crutcher et ux. v. Block, 19 Okl. 246, 91 P 895, 14 Ann.Cas. 1029; and see cases cited...