Pelton v. Minah Consol. Min. Co.
| Decision Date | 07 December 1891 |
| Citation | 28 P. 310,11 Mont. 281 |
| Parties | PELTON v. MINAH CONSOLIDATED MIN. Co. [1] |
| Court | Montana Supreme Court |
Appeal from district court, Jefferson county; THOMAS J. GALBRAITH Judge.
Suit by John Pelton against the Minah Consolidated Mining Company to enforce a mechanic's lien for labor performed on defendant's mine. From a judgment for plaintiff defendant appeals. Reversed, and judgment for costs entered for defendant.
Thos Joyes, for appellant.
Walsh & Newman, for respondent.
This action was brought to obtain judgment against the Minah Consolidated Mining Company for the sum of $33.35 for labor alleged to have been performed upon its Evening Star mining claim by respondent, and to foreclose a lien upon said mine to secure payment for such labor and costs of suit and counsel fees. It is conceded, for the purposes of this case that plaintiff was employed to work on said mine by one Alexander Swan, and all said labor was performed under his direction and management; and that Swan was in possession of and working said mine under a certain contract, which is fully set out in the record. Appellant contends that, under and by the terms of said instrument, said Swan was a lessee of said mine, and that such labor was employed and rendered to him in working said mine as a lessee thereof; that therefore, the appellant is neither liable on said account, nor is said mine subject to a lien therefor. Section 3 of "An act to amend an act entitled 'An act to amend an act relating to liens of mechanics and others,"' approved March 9, 1887, (Ex. Sess. 1887, p. 71.) Respondent contends, on the contrary, that said instrument is a contract entered into by said company with said Swan to do certain development work and mining on said mining claim for said company, for which said company is liable, and said mine is subject to lien. It is therefore necessary to determine whether, by the terms and conditions of said instrument, said Alexander Swan was in possession of and working said mine as a lessee thereof or otherwise. The instrument in question is in the form of a contract between said company, as party of the first part, and said Alexander Swan, party of the second part; and provides that he shall commence operations on said mine on or before the 1st of April, 1890, and "pump the water out of said mine; strengthen up and repair the shaft where necessary; run levels at the depth of one hundred feet, both east and west from the shaft, so far in either direction as the ore found will justify; properly square the levels and lag the same overhead; to mine the ore from overhead in a good, workman-like manner." The instrument goes on to further provide that said Swan shall sink a shaft 100 feet in depth on the vein; that said shaft shall be of certain specified dimensions, and shall be timbered and faced in a certain manner; that at the bottom of said shaft said Swan shall run levels of stated dimensions and distances on the vein, providing in detail how such levels shall be timbered, and that "from over said levels said party is authorized to stope and mine so much of the ore as he may desire;" that the ore so mined shall be taken at the expense of said Swan to a certain mill for concentration, and the concentrates therefrom delivered by him at his own expense on board the railroad cars at Wicke's Station; that said concentrates should be shipped by the appellant to such smelter as would pay the highest price therefor, and whenever the said Swan could find any purchaser of said concentrates at a higher rate than was being obtained by appellant, then, on his request, the appellant should ship to such purchaser as was found by Swan. The contract further provides that said Swan should "have, as full compensation for sinking said shaft, running levels, stoping the ore, furnishing the timber, and hauling and delivering the ore to the cars, eighty per cent. of the net returns as paid for said ore, by...
To continue reading
Request your trial