This action is sought to be maintained under the provision in R. S., c. 67, § 9, that “any person, whose timber shall be so intermingled with the logs, &c., of another, that the same cannot be conveniently separated for the purpose of being floated to the market or place of manufacture, may drive all the logs, &c., with which his own are so intermingled, toward such market or place, &c., and shall be entitled to a reasonable compensation from the owner, to be recovered after demand therefor, &g., in an action of the case; and he shall have a prior lien on the same, until thirty days after the timber shall have arrived at its place of destination, in order to enable him to attach the logs, &c., in such action.”
This statute gives to a party a right to enforce a claim for services, supposed to be rendered for the benefit of another, but without his request, and sometimes without his knowledge, *501and possibly against his wishes. Such a statute is in derogation of the common law, and must have a strict construction.
To entitle a person to recover under this provision, it contemplates that he shall render the entire service of driving his own logs, and those of another intermingled therewith, without any assistance from the latter. Such is the literal meaning of the language employed. The person in whoso favor the statute was made, “may drive all logs, masts and spars, with which his own are so intermingled.” The provision is not made applicable to a case where the party owning logs intermingled with those in which he has no interest, aids the owner of the latter in a joint operation of driving the whole; and the Legislature do not seem to have had any such common labor in view; or to have provided a mode of compensation for the excess of the labor of one, over that of another, according to the amount of timber driven.
The lien given to the party, who shall drive all the logs so intermingled, is declared to be, that he may attach the same, for the recovery of compensation for his services. Possession of the timber must continue in the one entitled to the lien, to effectually secure the object-of it; and must, from its nature, exclude the possession of the owner. When the driving is the joint work of two or more owners, each may claim compensation of the other for an excess of service, beyond his equitable share. The logs in such a case, are supposed to be in the possession of all the owners, who aided in driving them; and it is difficult to see in what manner a lien in favor of each one against the other, or others, can exist, and be made effectual. The lien extends to all logs driven under this provision. And it does not appear to have been intended, that compensation could be enforced thereunder, for services rendered in such a manner, that a lien upon the timber does not attach.
The claim is for services rendered in aiding the defendant in driving his logs. From the case, it appears, that no entire portion of the timber belonging to Mm was driven by the *502plaintiffs, and the statute invoked for the recovery of the compensation demanded is inapplicable.
Exceptions sustained; new trial granted.
Hathaway, Appleton, May and Goodenow, J. J., concurred.