Stinson v. Hardy

• Decision Date: 20 July 1895
• Citation: 27 Or. 584,41 P. 116
• Parties: STINSON v. HARDY et al.
• Court: Oregon Supreme Court

41 P. 116

27 Or. 584

STINSON v. HARDY et al.

Supreme Court of Oregon

July 20, 1895

Appeal from circuit court, Baker county; Morton D. Clifford, Judge.

Action by William Stinson against O.B. Hardy and others to foreclose miners' liens. From a judgment for defendants, plaintiff appeals. Affirmed.

William Smith, for appellant.

M.L Olmsted, for respondents.

WOLVERTON J.

This is a suit to foreclose three several miners' liens claimed for work and labor done and performed at the instance of the defendant O.B. Hardy, who was operating certain mining properties under the following agreement with the owners thereof, viz.:

"This indenture, made and entered into this 12th day of October 1893, by and between C.M. Berry, C.M. Colier, L.M. Barnett and J.M. Barnett, his wife, and D.L. Choate, as lessors, of Baker county, Oregon, the parties hereto of the first part and O.B. Hardy, lessee, the party of the second part, and of the same place, witnesseth: That whereas, the said lessors, the parties of the first part, have by their joint deed of conveyance, under their hands and seals, and of even date herewith, conveyed to the said lessee all their rights, title, and interest in and to those two certain quartz mines situated in Baker county, state of Oregon [here follows a description of the mines], and therein covenanting that the said mining claims had been recorded and worked, as required by law, to the extent of one hundred dollars worth on each of said claims for each year since its location, and have been continuously worked theretofore by themselves, their predecessors in interest, for the purpose of holding the same, and making the same valid as locations. And whereas, said deed so executed and acknowledged is delivered as an escrow to the First National Bank of Baker City, Baker county, state of Oregon, to be kept upon condition of the full and complete payment by the said party of the second part herein, his heirs or assigns, of the sum of twenty thousand dollars ($20,000) to the said first parties, their order, heirs or assigns, on or before the first day of January, 1895, and upon said condition to be delivered to the said second party herein, his heirs or assigns, as the deed of the said first parties herein of, in, and to the premises therein and herein described. And whereas, said escrow so delivered, upon condition that said mines be leased by the said first parties herein to the said second party herein until the fulfillment of or breach of the conditions of said escrow: Now, therefore, in order to carry out the terms of said escrow, the said parties of the first part do hereby deliver unto the possession of the said second party the above-named quartz mines, with their appurtenances, with the full right, power, and privilege and authority, and without let or hindrance, except as herein expressed, to extract the ore therefrom, and to work the same by whatever machinery or appliances the said second party may employ for the purpose of preparing for and working the same and taking the ore therefrom, crushing the same, extracting the gold therefrom, and otherwise using and operating the said mine in a proper and miner-like manner, doing no willful or unnecessary injury thereto, and in developing the same for the period from this, continually next ensuing, until the first day of January, 1895: provided, nevertheless, that the said second party, the lessee herein named, shall at all proper times permit either one of said lessors whom a majority of them may choose, at all proper times during the continuance of this lease, to enter upon said mine and inspect the manner in which the same is being managed and worked by said lessee, and inspect and be informed for the benefit of said lessors of the character and amount of the yield of the ore extracted from said mine. And provided, further, that said ore taken from said mine by said lessee shall be crushed and the mineral extracted therefrom in a proper manner, and at such intervals, in such quantities, as is usual in the working of mines of that character in that vicinity; and the said lessee shall preserve said mine, and all machinery, erections, and appliances erected thereon, free from incumbrances and liens, to the end that the same may be delivered, in the event of his failure to purchase the same, back to the said lessors, at the expiration of this lease, free from any such liens or incumbrances. And provided, further, that all expense incurred in procuring machinery, appliances, assistance, or otherwise in developing or working said mine, crushing the ore therefrom, and all other expenses shall be borne by the said lessee, and he shall save the said lessors harmless from all such expense, without charge therefor. And provided, further, that the said lessee shall and is hereby granted the right and privilege of applying all the proceeds and yield arising from the working of said mine, and extracting the metal and bullion therefrom, after deducting and paying such expenses for machinery and otherwise, to the payment of the purchase price of said mine to the said lessors; and the said lessors hereby covenant and agree to accept and receive the same as such payment upon said purchase price. And provided, further, that in the event of the failure of said lessee to complete this contract or to fulfill his said contract of purchase on or before the time limited therefor, then and in that event all buildings, machinery, and permanent appliances or improvements erected upon said mine by the said lessee in pursuance of these presents shall be forfeited to and become the property of and be surrendered to the said lessors as a part of said mine. And the said lessee, being the party of the second part herein named, with full knowledge of the terms and conditions of the foregoing instrument, both hereby promises, covenants, and agrees to conform to and abide by all the terms, conditions, and contracts on his part herein required and set forth; and to that end doth hereby bind himself, his heirs and assigns, to keep and perform the same. In testimony whereof, the respective parties hereto have hereunto set their hands and seals in duplicate this 12th day of October, A.D.1893. C.M. Berry. C.M. Colier. L.M. Barnett. J.M. Barnett. O.B. Hardy.

"Witness to signatures of C.M. Berry, C.M. Colier, L.M. Barnett, and O.B. Hardy: T. Calvin Hyde. Sam Carpenter."

The liens are claimed under section 1 of an act entitled "An act for securing liens for laborers on mining claims and material men, and prescribing the manner of their enforcement," approved February 20, 1891, which provides, in effect, that every person who shall do work or furnish materials for the working or development of any mine, lode, mining claim, or deposit yielding metals or minerals of any kind, or for the working or development thereof, and all persons who shall do work or furnish material upon any shaft, tunnel, incline, adit, drift, or other excavation designed or used for the purpose of draining or working any such mine, lode, or deposit, shall have a lien upon the same, which lien shall attach to the mine, lode, etc.: "provided that this section shall not be deemed to apply to the owner or owners of any mine, lode, deposit, shaft, tunnel, incline, adit, drift, or other excavations when the same shall be worked by a lessee or lessees."

The vital question for our determination is...