§ 586. Same Will not lie against improvements made by licensee. The lien for improvements made upon mining property is, generally, given only against the real estate, or an interest therein, and before the lien will lie the party making the improvement must have an interest in the realty, unless otherwise provided by statute.1 Accordingly, where the mining improvements are made by one having no interest or possession in the realty, but only a license to mine, under a set of mining rules, the lien would not lie for improvements made by him, under his license.2

§ 587. To what property lien attaches. The special lien of a mine employee, or other laborer, attaches generally to the products of his own labor, wherever it may be found, and where the labor performed or material is furnished the same person, upon the same tract of land and under one continuous employment, the lien will ordinarily attach to the whole tract of land upon which the labor is performed and for the full value of the labor or materials furnished. And although the laborer cannot claim under one lien for work performed on different tracts of land, where the work for which the lien is claimed was performed upon the same tract of land, the lien is not con

1 Steineger v. Reaman, 28 Mo. App. 594.

2 Foundry Co. v. Cole, 130 Mo. 1; Richardson v. Koch, 81 Mo. 264; Conrad v. Saginaw Min. Co., 54 Mich. 249; 52 Amer. Rep. 917; Cooper v. Johnson, 143 Mass. 108. Richardson v. Koch, supra, is criticised in Press Brick Co. v. Quarry Co., 151 Mo., p. 517. But in Oregon the owner of exclusive license is held subject to lien, the same as lessee. Stinson v. Hardy, 27 Oreg. 584; 41 Pac. Rep. 116. The legislature of Missouri, in 1901, passed an act giving a lien against improvements of a licensee. See Acts Missouri for 1901, p. 206.

3 See Hart's App. 96 Pa. St. 355; 11 Am. & Eng. Ry. Cas. 516; Williamette &c. Co. v. Remick, 1 Or. 169.

4 Davis v. Alvord, 94 U. S. 545; Wade's Am. Min, Laws, p. 223, § 156.

fined to such separate structure on the mining claim or lot, but will attach to such property as a whole,1 even though the work was performed under different contracts and upon separate structures erected on the property. But the special lien of a mine employee or other laborer, will usually only apply to the products of his own labor and in the foreclosure of his lien he is not, generally, entitled to participate in the proceeds of other personal property, even though such property was included in his foreclosure, and at the time of deciding the issues was before the court for distribution." And the lien is also confined exclusively to the interest of the employer in the property, or to the interest of those with whom the lienor has had contractual relations, and although it attaches to the entire interest of such parties in the mine, to the mining machinery and fixtures and everything used in and about the mine, the lien could not attach to such property as the

1 The Dugan Cut Stone Co. v. Grey, 114 Md. 497; Beatley v. Parker, 141 Mass. 523; Henry v. Apgar, 93 N. Y. 531. But the lien will not apply to boilers, engines and machinery erected on leased property with a power of removal reserved in the lessee, for unless the same were in the construction of the buildings or improvements, or were afterwards permanently connected therewith and annexed to the realty, they are mere personal property and do not pass with the realty. Richardson v. Koch (a leading case), 81 Mo. 264; White's App., 10 Pa. St. 252; Thomas v. Davis, 76 Mo. 72; Baylies v. Linex, 21 Ind. 45; Ranson v. Sheahan, 78 Mo. 668; Collins v. Mott, 45 Mo. 100; contra, Allen v. Frumet Min. & Smel. Co., 73 Mo. 688; McGregory v. Osborne, 9 Cal. 119; Morgan v. Arthurs, 3 Watts (Pa.), 140; 5 Watts, 115.

2 Haenssler v. Missouri Glass Co., 52 Mo. 452; Parrish's App., 83 Pa. St. 111. "An architect filed a lien for the erection of a hoisting and dumping cage' over a leased coal mine in Schuylkill County, against the entire leasehold interest: Held, that his lien was confined, under the act of Feb. 17, 1855, to the specific improvement which he had erected, and that his failure so to restrain it rendered his lien null and void." St. Clair Coal Co. v. Martz, 75 Pa. St. 384; Morrison Min. Dig., p. 211, § 16.

3 Vandegriff's App., 83 Pa. St. 127; Robson & Co.'s App., 62 Pa. St. 405; Tibbetts v. Moore, 23 Cal. 208; Morrison's Min. Dig., p. 221.

lessor owned in or about the mine when the contract of employment had been with the lessee alone, for his property alone could be held for the payment of such a debt.1

§ 588. Same · Character of improvements and nature of annexation essential. If the character of the improvements, or the nature of the material furnished, is such as would come under the class of fixtures, known as trade fixtures, since the intention of the parties in the case of such annexations is usually to regard the same as personal property, a lien is not generally given for such improvements. But where the improvements that are annexed are portions of one complete plant, although from different

1 Hopkins v. Hudson (Ind.), 5 West. 312; Barclay v. Wainwright, 86 Pa. St. 191; McMahan v. Vichey, 4 Mo. App. 225; Knapp v. Brown, 45 N. Y. 207; Judson v. Stephens, 75 Ill. 255; Johnson v. Dewey, 36 Cal. 623. And the same rule obtains where the improvements are made by the under tenant of the lessee. Francis v. Sayles, 101 Mass. 435.

66

Ewell's Fixt. 288; Meek v. Parker, 63 Ark. 367; Oves v. Oglesby, 7 Watts (Pa.), 106; Foundry Co. v. Cole, 130 Mo. 1; Richardson v. Koch, 81 Mo. 264; Heidegger v. Atlantic Co., 16 Mo. App. 327; Haskin Vulcanizing Co. v. Cleveland Co., 26 S. E. Rep. 878; Watts-Campbell Co. v. Yuengling, 125 N. Y. 1. An iron furnace company intending to improve and enlarge the works, contracted, before July 16, 1872, with several different manufacturers for various parcels of the heavy machinery and fixtures intended to be erected, and on that day laid the foundation of the boiler stack. The several contractors had also begun the manufacture of the parcels of machinery. On July 17, 1872, the premises were mortgaged: Held, that the lien for such improvements was anterior to the mortgage, although they were not brought on the premises until months after; and that from the preparations made, the mortgagee had due notice that the improvements were 'additions of material parts' to the original structure." Parrish & Hazard's App., 83 Pa. St. 111; M. M. D. 211. "A track on the slope of a coal mine is a temporary structure and not an improvement' or 'fixture' under the lien act of Feb. 17, 1858, and is not liable to mechanics' lien. Act construed." Easterley's App., 54 Pa. St. 192; M. M. D. 211. "An oil well is held to be a 'structure' within the Indiana lien law, giving lien for material furnished house, mill, structure,' etc." Haskell v. Gallagher, 20 Ind. App. 224; 50 N. E. Rep. 485.

parties and in different parts, and are erected by one having an interest in the realty and not for transient use or removal, they would become a portion of the realty and, as such, subject to a mechanic's lien.1

1 Press Brick Co. v. Machine Co., 151 Mo. 501; Kemper v. King, 11 Mo. App. 116; Wolfort v. St. Louis, 115 Mo. 144; Lindsay v. Gunning, 59 Conn. 296; Lannon's App., 8 Pa. 473; Bodley v. Denmead, 1 W. Va. 249; Edwards v. Derrickson, 28 N. J. Law, 39; Linden Co. v. Mfg. Co., 158 Pa. St. 238; Salt Lake Co. v. Ibex Mine & Smelting Co., 15 Utah, 440; Cary Co. v. McCarty, 50 Pac. Rep. 744. "Does not operate to give priority against a mortgage recorded before work commenced." Preston v. Sonora Lodge, 39 Cal. 116; M. M. D. 212. "A party employed on a mine at a stipulated rate per day, payable monthly, who was employed prior to the execution of a mortgage on the premises, holds his lien subject to the lien of the mortgage, from the end of the current month during which the mortgage was recorded." Capron v. Sprout, 11 Nev. 304; M. M. D. 211. A coal mine is an improvement. 42 Fed. Rep. 106. A lien will not lie for boilers, engines, etc., used at a mine, but not annexed to, or connected with the real estate as a permanent improvement, under the Missouri lien law. Meistrel & Co. v. Roach, 56 Mo. App. 243; Mo. Valley Cut Stone Works v. Brown, 50 Mo. App. 407; Springfield Found. & Mach. Co. v. Cole, 130 Mo. 1. A lien for labor will not extend to machinery simply piled on the land and not attached to or used in the mine. Hamilton v. Delhi Min. Co., 118 Cal. 148.

CHAPTER XI.

PARTITION OF MINES.

SECTION 589. Nature and extent of right. 590. Governed by lex loci.

591. What title will justify.

592. Title to ore, in place.

593. Life tenant may maintain.

594. Incorporeal right not subject to.

595. Partner not entitled to Co-owner may have partition.

§ 589. Nature and extent of right. When opened, mines are in their very nature incapable of being equally divided 1 on account of the unknown, fluctuating value of the property.2 Partition cannot be made of the minerals in the same way that the surface can be set off by metes and bounds, for the quantity and value of the ore deposits; the approach thereto and the facility with which they can be worked, cannot be judged, even by the most scientific, by the character of the soil or subsoil at the surface.3 these reasons and because, generally partition must usually result in a sale of the property, the courts will require full information as to the relations of the parties to the property and are slow to decree partition of such prop

1 Lenfers v. Henke, 73 Ill. 405.

For

2 Ante, idem. Strettell v. Bollan, 3 McCrary, 46; Aspen M. & S. Co. v. Rucker, 28 Fed. Rep. 220; Conant v. Smith, 1 Aiken (Vt.), 67.

3 Adam v. Briggs Iron Co. (Mass.), 7 Cush. 361.

4 Aspen M. & S. Co. v. Rucker, supra.