Gould v. Wise

Leonard, J.,

dissenting:

Whether or not any person has a lien on real property depends entirely upon the statute. Our statute, in the cases mentioned therein, only gives liens for labor performed and materials furnished at the instance of the owner or his ageut. “Every contractor, sub-contractor, architect, builder, or other person having charge of any mining claim, or of the construction, alteration, or repairs of auy building or other improvement,” is an ageut of the owner. A contractor is one who enters into a coutract with the owner to perform labor of furnish materials, and is responsible to the owner; a sub-contractor enters into a contract with the contractor aud is responsible to the latter; an “ai’chitect, builder, or other person” .may have charge for the owner, contractor, or sub-contractor. There may be at the same time an owner of the fee and an owner for years, as there was in this case. (Phil. Mech. Liens, 151.) The plaintiff was a contractor with Torrey, the lessee, but not with defendant’s grantor, the owner of the fee. Plaintiff was an agent of Torrey, but not of the Boca Mill Company, nor was Torrey the latter’s agent. A.s agents of the Boca Mill Company, *266neither plaintiff' nor Torrey had power to burden the-interest of the former with liens. Under section 1 of the lien law it is only upon contracts made with the owner or his agents named, that liens are allowed at all, and, without sectiou 9, it is my opinion that Torrey’s interest alone would .have been subject to any liens filed in this case.

In Georgia the statute giving all persons employed on steamboats a lien thereon for wages, and for wood and provisions furnished, was so amended as to be applicable to all steam saw mills at or near any of the water-courses in the state, in behalf of all persons who might be employed by the owner or owners, agent or superintendents, for services rendered, or for timber or fire-wood of any description, provisions or supplies, delivered to any such steam saw-mill. The amendment also declared that the same course should be pursued for the recovery of any such claim, as was stated in the original act; provided, the demand for such claim should be first made to the owner or agents of any person having control of any steam saw-mill against which any proceedings might bo had uuder the provisions of said act. (Cobb Dig. Ga. 1851, p. 428.) Construing that statute in Harman v. Allen, 11 Ga. 46, the court said:

“The lien given by the act of 1842, and the summary remedy provided for its enforcement, are in behalf of the persons who are employed by the owner, agent, or superintendent of the mills, or for services rendered, or for supplies of any description which may be furnished the mill. It is clear that the lessee is neither agent nor superintendent in contemplation of the statute. He must, therefore, be the owner of the property, or otherwise the act does not apply to him at all. But he is the qualified owner of the mills, and it was competent for him, as such, to bind the property for the unexpired term for which it was let. Beyond this he could not go. It would be intolerable to hold that he could create liens upon the reversion, ad libitum, for stocks and other materials consumed during his temporary occupancy. It has been contended that the words ‘ agent ’ and ‘superintendent,’ include those who, defacto, control the *267property, irrespective of ownership. If so, then a mere trespasser or disseizor who wrongfully obtains the custody might incumber the estate with the most ruinous burdens. Such, we apprehend, could not have been the intention of the legislature. None but the rightful owner, his ■agent, or superintendent can exercise this power ; and, inasmuch as the tenant for the time beiug is the rightful owner, .he may, by his contract, bind the property to the extent of his interest, but no further.”

.In my judgment the court’s reasoning in that case is ' sound, and it is applicable to this case under section one. S.e.e, also, McCarty v. Carter, 49 Ill. 57; Phil. Mech. Liens, 117.

But sectiou 9 provides that every building or other improvement mentioned in section 1, constructed upon any lands with the knowledge of the owner, or the person claiming an interest therein, shall be held to have been constructed at the instance of such owner or person claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person haviug or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, or the intended alteration, construction, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to ■ that effect in some conspicuous place upon said land or building or other improvement situate thereon.” If defendant’s grantor had knowledge through its agent of the construction, alteration or repairs made by Torrey, and did not post the required notice within the specified time, then, by the terms of the statute, the materials furnished by plaintiff and the labor performed in repairing or altering the mill must be held to have been furnished or performed at the instance of the Boca Mill Company, and, under section 1, ■ as well as section 9, the interest of that company became burdened with liens for such materials and labor. But for ‘ the labor performed by intervenors in “ carrying on the *268mi]],” I do not think the statute, construed as an entirety, permits any interest beyond that of the lessee to be subjected to the liens.

Section nineteen of the existing lien law was enacted as an independent statute iu 1869, and was embodied in the present law iu 1875, when section nine was, for the first time, made a part of the law governing liens. I feel satisfied, as before stated, that without the aid of section nine even the plaintiff could not have subjected the interest of the Boca Mill Company to liens for materials furnished and labor performed for Tofrey ; and if I am right in this,.then interveners are not entitled to a lien upon that interest, for labor performed in “carrying on the mill,” because section nine does not declare that such labor shall be held to have been performed at the instance of that company, unless it gave the notice required iu case of construction, alteration, or repair.

Under section nine the Boca Mill Company was bound to give the required notice or have its property subjected to liens for machinery and materials furnished, and for labor performed under contract with Torrey, iu constructing, altering, or repairing the mill. But for the labor performed in running the mill,-no notice was required; audit cannot be said that the owner of the reversion was bound to give notice as to such labor, simply because it had to be given in the matter of materials furnished and labor performed in improving the mill. On the contrary, since the legislature, ex industria, limited the necessity of a notice to one class of claims, the presumption is that the other was not intended to be included.

Section 9 is a harsh law, and it should not be construed to mean more than was plainly intended by the legislature. If a mill is altered or repaired by a lessee, a lien may, with some reason, be given upon the interest of the lessor, unless he gives the notice required; for the value of the property may be, and probably will be, enhanced by the outlay. But before I can say the legislature intended to give a lien upon the mill of a lessor for work performed in *269running it,- under a contract with a lessee, and for his sole benefit, in other words, before I can say that the legislature intended to make a lessor’s property liable for a lessee’s debts, such intention must be sd plainly expressed that no other construction is consistent with the language employed. Iu my opinion that intention nowhere appears in the statute under consideration.

It is provided in section 19, under which intervenors claim their lien, that “all the provisions of this act respecting the mode of filing, recording, securiug, and enforcing the lions of contractors, journeymen, laborers, and others, * * * shall be applicable to this section of this act.”

That is to say, lien claimants, under section 19, shall pursue the same course iu recovering their claims as is required of other lien claimants. I am of opinion, also, that under section 3 of the lien law the liens of intervenors cannot attach to any interest in the land occupied by the mill except Torrey’s.

To the extent stated I dissent.