2

forth,1 the time at which the lienor was employed, the character of the work performed,3 or of the materials furnished, by whom and for whom the same was done, together with a designation of the mine. These matters, if set forth in a clear and concise manner, will entitle the plaintiff to his lien, on the corresponding proof, but, as in all forms of pleading, under the code, only the issuable facts should be stated.5

§ 578. Who entitled to file lien. — As a general rule, only those parties who spend their time and labor in the service of the mine operator or employer and are employed to work upon the mine, can claim the benefit of the miners' lien law. It frequently becomes a matter of some difficulty to determine just who is to be considered a mine employee within the meaning of the statute. The question to be determined in such cases is whether or not the work, for which the lien is filed, was actually performed upon the mine; if it was, or if the material was used in or upon the mine, the laborer or materialman will have a lien upon the mine for the work done, or the materials furnished.' The foreman of a mine is a mine employee within the mean

1 Parker v. Savage Placer Min. Co, 61 Cal. 348; Miller v. Bedford, 86 Pa. St. 454; Bodderick v. Poillon, 2 E. D. Smith (N. Y. ), 554; Logan v. Attix, 7 Iowa, 77; Gogin v. Walsh, 124 Mass. 516.

2 Hooper v. Flood, 54 Cal. 218; Sandral v. Ford, 55 Iowa, 461; Reneker v. Hill, 3 Phila. (Pa.) 110.

3 Morris Canal Co. v. Rockaway Mfg. Co., 14 N. J. Eq. 189; Hill v. Bishop, 25 Ill. 349; Crawford v. Crocket, 55 Ind. 220.

4 Wilcox v. Keith, 3 Oregon, 372; Flynn v. Davis, 2 Wyoming, 118; Hicks v. Murray, 43 Cal. 515.

5 Bliss on Code Pleading, § 319 et sub.

6 The work, to be lienable, must be done with the consent of the owner. Moore v. Jackson, 49 Cal. 109.

7 Vastine's App., 38 Pa. St. 164; Perkins v. Pike, 42 Me. 141; Busfield v. Wheeler, 14 Allen (Mass.), 139. But although the lien depends on the strength of the labor performed on the property, the debt must be due

ing of the statute and will have a lien on the mining property for the payment of his wages,1 and it has been held that one employed to cut timber, which is to be used for cribbing purposes in a mine, is a mine employee, and entitled to a lien upon the property for his services.2 The individual members of a mining partnership are also entitled to a lien for partnership claims against the mine that have been paid and for expenses incurred, in excess of the proportionate expense of the different members for

when the notice is given. Blythe v. Poultney, 31 Cal. 234. But the "incidental labor for which liens are given under the statutes must be directly done for, or connected with or actually incorporated into the building or improvement sought to be charged and if they are not done so, the lien must fail." Rara Avis &c. Mining Co. v. Bouscher, 9 Colo. 385; s. c. 15 Am. & Eng. Enc. of Law, p. 37. "Hauling quartz to a quartz mill is 'performing labor for carrying on the mill' (Stat. of Nev. 1861), and gives the laborer a lien upon the mill." In re Hope M. C., 1 Sawyer C. C. 710; M. M. D. 210. "The foreman of a mine has a lien for his wages or salary." Capron v. Sprout, 11 Nev. 304; M. M. D. 212. "A mining expert who contracted to explore certain mines held not entitled to assert a mechanic's lien on the property for such services under Mechanic's Lien Act." Lindemann v. Belden. Consol. Min. & Mill. Co. (Colo.) 65 Pac. Rep. 403. The general manager and superintendent of a mine who performed no bodily labor, but only superintended the operations, is not entitled to a lien, under the New Mexico statute. Boyle v. Mining Co., 9 N. M. 237; 50 Pac. Rep. 347. See, also, Colo. Iron Works v. Taylor, 12 Colo. App. 451; 55 Pac. Rep. 942. "One who contracts to drill an oil well and to furnish the tools, ropes, fuel, etc., to be used in the drilling, can file a mechanic's lien against the well for the work so done and the materials furnished, under the provisions of the second section of the act of the seventh of March, 1873." Vandergrift's App., 83 Pa. St. 127; M. M. D. 211. "Materials furnished for engine, derrick, etc., to the lessee of an oil well are protected by the Lien Acts of Feb. 17, 1858, and April 11, 1866." Robson & Co.'s App., 62 Pa. St. 405; M. M. D. 211. "A brick-maker has a lien upon the brick manufactured by him, under contract with the owner of the brick-yard." Moore v. Hitchcock, Wend. 293; M. M. D. 211.

1 Capron v. Sprout, 11 Nev. 304. 2 Bradbury v. Cronise, 46 Cal. 287. hauling ore. In re Hope Min. Co., 1

And a lien has also been given for Sawyer, 710.

operating the mine.1 And a mine superintendent has a lien on the property of the company for which he is working,' for expenses incurred by him, which were to be borne jointly by the company, and he must proceed against the joint assets of the company for the payment of such expenses, before he can hold the individual assets of the different members of the company liable for the same. But a superintendent employed simply to pay off the laborers and oversee the operation of the mine, will not be entitled to a lien upon the property of the company, for which he is working, for the payment of his salary, and he is not deemed a mine employee within the meaning of the statute creating miners' liens.4

§ 579. Same - Labor and materials. Lien statutes, giving miners and material men liens upon mines, are liber

1 Wade's Am. Min. Laws, § 156, p. 223; Duryea v. Burt, 28 Cal. 569; Blanchard & Weeks Ld. Cas., p. 489; Mellior v. Valentine, 3 Colo. 255. 2 Palmer v. Uncos Min. Co., 70 Cal. 614; Helm v. Chapman, 66 Cal. 291; Sylvester v. Cal. Quartz Min. Co. (Cal.), 22 Pac. Rep. 217; Quale v. Moon, 48 Cal. 478. Also, see Williams v. Santa Clara Min. Assn., 66 Cal. 193; Hicks v. Murray, 43 Cal. 515. And the lien extends generally to the personal estate of the owners. Reed's App. 18 Pa. St. (6 Harris), 235. When the lien is given on "improvements," a coal mine is held to be an improvement. Central Trust Co. v. Coal, I. &. R. Co., 42 Fed. Rep. 106. And lien applies to "whole mine." Sylvester v. Cal. Quartz Co.,

80 Cal. 510.

3 Isaacs v. McAndrews, 1 Mont. 437.

4 Smallhouse v. Ky. M. G. & S. M. Co., 2 Mont. 443; Morrison's Min. Dig., p. 210, § 9. Lien dates from performance of last work. Capron v. Sprout, 11 Nev. 304. "But a party having contracted to erect smelting-works, the final completion of the contract (which was general, not specifying any particular buildings) being suspended for more than the statutory period for filing mechanic's lien, it was Held, upon the facts, that a renewal of the work after that period was not in continuation of the original contract." Lunt v. Stephens, 75 Ill. 507; M. M. D. 211. "A lien on a quartz mill, after it is completed, cannot be kept alive by occasional repairs." Davis v. Alvord, 94 U. S. 545; reversing Alvord v. Hendrie, 2 Mont. 115; M. M. D. 211.

ally construed,1 and the laborer is entitled to its provisions, whether employed by the day or upon contract. The superintendent 3 and foreman 4 are both entitled to the benefit of the statute; work on a building may be commingled with work upon the mine,5 unless they are two separate parcels of property and, generally, the material man is entitled to a lien for any material furnished and used, or to be used in and about the mine.' Machinery, engines, ropes and lumber for derricks, powder, steel and candles,1o used in a mine; work done in drilling an oil well; 11 cutting wood 12 and hauling mineral,13 have all been held to entitle the party furnishing the work or material to a lien. But the laborer's lien does not give him any right to sell the mineral of his employer, but only a lien upon his property, 14 and the lien is usually confined to the particular property benefited by the labor or material furnished.15

8

1 In re Hope Min. Co., 9 M. M. R. 364; Skyrme v. Occidental Co., 9 Idem, 371.

2 Skyrme v. Occidental Co., supra; s. c. 8 Nev. 219; Capron v. Sprout, 9 M. M. R. 392.

8 Cullen v. Flagstaff Co., 9 M. M. R. 412. But see, contra, Smallhouse v. Ky. Co., 9 Id. 388.

Capron v. Sprout, supra.

5 Skyrme v. Occidental Co., supra; Dickinson v. Bolyer, 9 M. M. R. 415.

6 Davis v. Alvord, 9 M. M. R. 384.

7 Keystone Co. v. Gallagher, 9 M. M. R. 406.

8 Parrish v. Hazard's App., 83 Pa. St. 111.

9 Robson & Co.'s App., 62 Pa. St. 405.

10 Keystone Co. v. Gallagher, supra. See, also, Rapauno Chem. Co.

v. G. & N. Ry. Co., 59 Mo. App. 6, where lien was given for powder used on railroad.

11 Vandergriff's App., 83 Pa. St. 127.

12 Bradbury v. Conise, 46 Cal. 287.

13 In re Hope Min. Co., 1 Sawyer, C. C. 710. But see Bernard v. McKenzie, 9 M. M. R. 343, contra.

14 Granby Mining Co. v. Turley, 9 M. M. R. 343.

15 Davis v. Alvord, 9 M. M. R. 384; Hieveller v. Redding, 14 M. M. R. 654. One mining phosphate by the ton is not held entitled to the benefit

§ 580. Same - Partners and cotenants.- Each member of the firm, in a mining partnership, has a lien upon the property of the firm for debts due and money advanced by him for the firm,1 and such lien may be enforced in a court of equity, although no agreement was had between the partners, and the purchaser of the interest of the partner, who took with notice of the indebtedness, would buy subject to such lien. A creditor's lien, however, is upon the entire property of the firm and upon no individual's interest therein, and consequently a sale of an individual partner's interest, under execution, is not defeated by a lien of a firm creditor. But one tenant in common has no lien upon the common property for rents and profits, appropriated by a tenant in possession, the remedy, in such case, being a suit for an accounting.5

§ 581. Prevented by assignment of debt. The statutory right of lien given to mine employees and other laborers, is held to be a mere personal right, given the laborer for his own protection, and the right to create it is waived by an assignment of the debt. The weight of the later

of the South Carolina lien law. Malcomson v. Wappoo Mills, 85 Fed. Rep. 907. Lubricating oil and grease used to oil mining machinery are not such material as to afford a lien to the party furnishing same. Holter Hdw. Co. v. Ont. Min. Co. (Mont. 1900), 61 Pac. Rep. 8.

1 Durea v. Burt, 28 Cal. 569.

2 Ante, idem. Fereley v. Whitewick, 11 M. M. R. 247.

3 Durea v. Burt, supra.

4 Beatty's App., 9 M. M. R. 346. An agreement for division of mineral oil by a pipe line company destroys partner's lien.

(W. Va.), 34 S. E. Rep. 828.

Childers v. Neely,

5 Stenger v. Edwards, 70 Ill. 631. But, contra, as to lien for improvements on the common property, idem; s. c. 9 Mor. Min. Rep. 368.

62 Jones on Liens, Secs. 1493-4; Davis v. Biesland, 18 Wall. 659; Tewksberry v. Bronson, 48 Wis. 581; Brown v. Harper, 4 Oregon, 89; Merchant v. Water Power Co., 54 Iowa, 451; Brown v. C. S. F. & Cal. Ry. Co., 36 Mo. App. 458; Pearsons v. Tinker, 36 Me. 384; Ruggles v. Walker, 34 Vt. 468.