(after stating the facts). The question presented by this appeal is whether certain contractors and laborers had a lien on lumber manufactured by the Long Pine Lumber Company and sold by it to the appellant, Klondike Lumber Company.
Onr statute gives laborers who perforin work and labor a lien on the production of their labor for the amount due them for such work and labor. Sand. & H. Dig. § 4766; Acts of 1895, p. 39. The statute, as it now stands in the Acts of 1895, is silent as to whether the labor shall be done under a contract or not, but of course it was not intended that a mere trespasser should have a lien. The labor must be. done either under a contract with the owner, or under circumstances showing that the owner consented thereto, though a majority of us are of the opinion that it is-unnecessary that the laborer should perform the work under a contract in direct privity with the owner-of the property. If it is done under a contractor who has a contract with the owner for the performance of the work, that sufficiently shows the consent of the owner, though in such a ease the lien could not exceed the amount agreed to be paid by the owner to the contractor for the performance of the work. It might even be limited to the amount due the contractor at the time the action to enforce the lien is commenced, but under the facts of this ease that question need not be considered. All that we need say here is that the laborers who cut and hauled the timber to the mill are not debarred from claiming a lien by the mere fact that they were not directly employed by the owner of the timber. It is sufficient that they worked under one who had a contract with the owner to do the work, and that the owner has paid neither the contractor nor the laborer. Munger v. Lenroot, 22 Wis. 541; Winslow v. Urquhart, 39 Wis. 260; Parker v. Bell, 73 Mass. (7 Gray) 429; Moore v. Erickson, 158 Mass. 71; Reeve v. Elemendorf, 38 N. J. Law, 125; Boisot, Mechanics Lien, 239.
The case of Tucker v. Railway Co., 59 Ark. 81, may seem to some extent in conflict with this ruling, but it is sufficient to say that the statute construed in that case is a different statute from the one which controls this case, and that, taking the object, purT pose and history of this act into consideration, we think that the construction contended for by the appellant is too narrow, and would, if adopted, to a large extent defeat the purpose of -the statute.
On the question as to whether these men who cut the timber 'into logs and hauled and placed them on the skidway at the mill of the owner are entitled to a lien on the lumber made from, the logs, there may be more reason to doubt. But their labor was part of the work necessary to change the timber into lumber. It contributed directly towards the production of the lumber, and we are of the- opinion that they have a lien, though the aggregate amount of these liens can not exceed the sum which the owner agreed to pay the contractors for performing the work.
As to the contractors, we have several times held that a contractor is not a laborer within the meaning of the statute giving persons liens who perform work and labor, the statute being intended to protect the actual laborer and not applying to contractors, or those who only superintend the labor of others. The mere fact, therefore, that Williams Bros, contracted to do this work and hired persons to do it gives them no lien; but they also themselves performed work and labor under their contract, and to the extent of the value of their own labor they have liens, as other laborers have. This lien, we think, should include the value of the use of their wagon and team when actually driven and used by them in performing the work. For in such a case the labor of one who uses a wagon and team or other instrumentality furnished by himself in the performance of his work includes both the work of himself and that of the instrumentality by which he performs it, and he has a lien for the value of all his labor. Martin v. Wakefield, 42 Minn. 176; Hale v. Brown, 59 N. H. 551.
While we approve of the ruling of the circuit court sustaining the lien of the laborers employed by Williams Bros., we are of the opinion that the court erred in holding that Williams Bros., the contractors, had a lien for the full amount due them by the Long Pine Lumber Company. As before stated, they had a lien only to the extent of the value of the work actually performed by them. As the evidence does not show the value of this work, we are unable to enter a final decree here. The judgment in favor of Williams Bros, .declaring a lien on the lumber to the full extent of the amount claimed by them under the contract will be reversed, and the case remanded for further proceedings that the amount for which they have a lien may be determined. In all.other respects the decree is affirmed.