Williams v. Toledo Coal Co.

• Citation: 25 Or. 426,36 P. 159
• Parties: WILLIAMS v. TOLEDO COAL CO. et al.
• Decision Date: 13 March 1894
• Court: Oregon Supreme Court

36 P. 159

25 Or. 426

WILLIAMS v. TOLEDO COAL CO. et al.

Supreme Court of Oregon

March 13, 1894

Appeal from circuit court, Benton county; J.C. Fullerton, Judge.

Action by N. Williams against the Toledo Coal Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J.R. Bryson and W.S. McFadden, for appellant.

L Flinn and C.E. Wolverton, for respondents.

MOORE J.

This is a suit to foreclose a miner's lien. It appears from the record that the plaintiff, on July 11, 1892 filed in the office of the county clerk of Benton county Or., the following notice:

"Know all men by these presents that I, Newton Williams, of the county of Benton, state of Oregon, do hereby give notice of my intention to hold and claim a lien by virtue of the statute in such case made and provided upon [[here follows a description of the real property by government survey], together with all improvements and appurtenances, and all situated in the county of Benton state of Oregon, and more particularly stated in Exhibit A, attached and made a part hereof. The said lien being claimed and held for and on account of work done in and upon said premises from the 1st day of February, 1892, to the 28th day of June, 1892. The total value of said work and labor being five hundred and twenty-six and 50/100 ($526.50), upon which there has nothing been paid. That there is now due, owing, and unpaid to me, the said claimant, the full sum of $526.50. The owner of this above-described property is a corporation known as 'Toledo Coal Company,' organized and working under and by virtue of the laws of the state of Oregon. I was employed by one B.F. Jones, who was the superintendent of the above-described premises for said corporation, to perform said work and labor. [ Signed] Newton Williams.

"State of Oregon, County of Benton--ss.: On this 9th day of July, 1892, personally appeared before me Newton Williams, and who, being by me first duly sworn, on oath states that the abstract of indebtedness mentioned and described in the foregoing notice is true and correct, and that there is still due and owing to him from the said Toledo Coal Company, for the labor aforesaid, the sum of $526.50. [ Seal.] H.G. Davis, Notary Public."

Exhibit A: "This lien is made and filed under and pursuant to an act of the legislative assembly of the state of Oregon entitled 'An act for securing liens for laborers on mining claims and material men, and prescribing the manner of their enforcement, approved February 20th, 1891.' That the said lien and claim aforesaid is made for and on account of work, labor, and services by me done and performed in the building and construction of a wagon road for the distance of about 1/4 of a mile in length, and from 14 feet to 20 feet in width, and labor in cutting a ditch in length about 225 feet and in depth from about 4 feet to 15 feet, and for labor in tunneling for the distance of about 100 feet, connecting with said ditch, and also in timbering and lagging for about 100 feet in connecting the same with a certain coal mine; and all of the said work and labor being on the said premises, and particularly on the following part and portion of the said premises, to wit, the N.W. 1/4 of the S.W. 1/4of section 31 in T. 10 S., R. 10 W., in said county and state."

The foregoing notice is made a part of plaintiff's complaint, to which the defendants demurred for the reason that it did not state facts sufficient to constitute a cause of suit, and that said notice did not comply with the requirements of the statute in such cases. The court sustained the demurrer, and, the plaintiff refusing to further plead, it was decreed that the suit be dismissed, and that the defendant recover his costs and disbursements in the suit, from which decree the plaintiff appeals.

Section 1 of said act (Sess.Laws 1891, p. 76) provides "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 of any such mine, lode or deposit in search of such metals or minerals; and to all persons who shall do work or furnish materials 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 to secure to him the payment of the work or labor done or materials furnished by each respectively which shall attach in every case to such mine, lode, and deposit, and though such shaft, tunnel, incline, adit, drift or other excavation be not within the limits of such mine, lode or deposit." It will be seen that...