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plaintiff a large sum, which the parties agreed should be a lien upon the mill and mine in equal proportions. Notices claiming a lien upon each for the amounts thus apportioned were accordingly filed in the recorder's office. Held: 1st, that a lien did not arise from this contract of apportionment, or from the special contract under which the work was done, but from the work itself, which was performed upon the property; 2d, that the work being done on different parcels of property, the lien claimed on one was to be considered separately from the lien claimed on the other; 3d, that the notice, so far as the mill was concerned, was filed too late, the statute requiring the notice to be filed within sixty days after the completion of the work, and the occasional repairs subsequently made could not be added to the work done months before, so as to render the whole work one continued performance, for which a single lien could be claimed within sixty days after the last repairs; 4th, that it not appearing when the work upon the mine was commenced in 1870, it will not be presumed that it was commenced before the mortgage of the defendant was executed and recorded in September of that year, so as to give to the lien for the work priority over the mortgage.

Pelton v. Minah Con. M. Co., 11, 281 (1891). By a contract between defendant and S., the latter was to work the mine of the former for a year, to make certain repairs, sink a certain shaft, run levels of stated dimensions and distances, and from over said levels to stope so much of the ore as he desired, the ore so mined to be concentrated and delivered at S.'s expense on board of cars, and the defendant was to ship the same. It was also provided that S. should " have, as full compensation for sinking said shaft, running levels, stoping the ore, furnishing the lumber, and hauling and delivering the ore on the cars, eighty per cent of the net returns as paid for said ore;" that if S. should fail to keep the mine in operation for five days in any one month, defendant might, at its option, consider the contract abandoned; and that S. should on the 15th of each month discharge every liability incurred against the mine by him during the month. This was held to be a lease, and an employee of S. had not a lien for labor upon the mine.

Smith v. Sherman M. Co., 31 Pac. 72 (1892). A statement showing the performance of work on a mining claim at a certain rate, for so many days between certain dates, and amounting in all to a fixed certain sum, no part of which has been paid, is sufficient to support a mechanic's lien under Comp. Stats., div. 5, sec. 1371.

The act of the first legislative assembly restricting a mechanic's lien to one acre of the land on which any building, structure, or improvement was situated, if outside of any town, did not apply to work done upon a mining claim; but Comp. Stats., div. 5, sec. 1370, supplied the omission as to such a claim, and without any restriction as to extent. The description, therefore, required by section 1371 need not contain a designation of boundaries, if the property may be identified merely by

name.

Block v. Murray, 31 Pac. 550 (1892). If the owner of a mine grants to another the possession, the right of possession, and the control thereof for a limited period, with the privilege to purchase at a fixed price at any time within the period, and also with privilege to extract ores

without limit, providing, however, some conditions as to sinking shafts, running levels, the manner of timbering, etc., all to be done, at the grantee's expense, reserving to the grantor a certain percentage of the net profits to be applied to the purchase if that option is exercised, otherwise to be retained by the grantor, and no provision is made for any payment by the owner, and there is no obligation on the part of the grantee to do the work, except that implied by the provision that failure should work a forfeiture, the grantee is a tenant within the meaning of the act of March 9, 1887, sec. 315, p. 17. The provision requiring a shaft to be sunk a certain depth, and timbered as designated, does not render the grantee a contractor. He was not bound to sink the shaft, etc., though failure worked a forfeiture; and the owner paid no consideration therefor. "The law allows a lessor to impose conditions as to the manner in which the leased premises shall be used and worked, and we would not be justified in holding that because the owners provided in a measure such conditions, therefore the interests of the owners became subject to a lien for labor and materials procured by the lessee in his operations on the mine in question, while the statute excepts such interests from such lien."

Hunter v. Savage C. S. M. Co., 4, 153 (1868). The act Nevada. of Feb. 6, 1867, did not give a lien for labor done before

its passage.

Where a judgment of lien was rendered against a mining claim for work done partly before and partly after the passage of the act, it was modified so as to allow a lien only for work done after the passage of the act, the amount of which should be ascertained by the lower court. The first day's labor for which a lien could attach was the day after the passage of the act.

In re Hope Min. Co., 1 Sawy. 710 (1871), D. C. D. Nev. Hauling quartz to a quartz mill gives the teamster a lien under an act providing that all persons performing labor for carrying on any mill shall have a lien on such mill for such work or labor done."

Skyrme v. Occidental M. & M. Co., 8, 219 (1873). Where sundry lien claimants filed a joint lien, and afterward filed their several liens, as they should have done in the first instance: held, that they could treat the first filing as a nullity.

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Work was done by many miners by the day, under the direction of the foreman, alternating with small contracts with sundry parties among the miners for running a few feet, at so much a foot. Held, that it was one continuous transaction, to be protected by a single claim for lien on behalf of each miner. The manner in which the work was conducted in the Occidental Mine is quite common in many of the mines in this State. In the prosecution of the work it is necessary to run tunnels and cross-cuts and sink winzes; and while as a general rule the laborers are employed by the day, it is often the case that some of them will take a contract to do this kind of work at a stipulated price per foot, and within a few days after their contracts are completed, either to go to work by the day or take other contracts in the same mine. It would be a harsh and unreasonable rule of construction in these cases to hold that the statute required separate liens to be filed for each contract to enable the laborer to secure his wages. The injustice of such a rule

would be greater to the mine owner than the laborer. It would destroy the credit necessary at times to have in order to continue operations on the mine, or add unnecessary costs and litigation by filing and foreclosing a multiplicity of liens."

Capron v. Strout, 11, 304 (1876). The foreman of a mine is entitled to a lien. "He certainly did work in the mine, though not with his hands, and it is clear that the direct tendency of his work was to develop the property. We think the foreman of work in the mine is as fully secured by the law as the miners who work under his direction." Under the provision in a statute that mechanics' liens shall be preferred to every other lien or incumbrance which shall attach subsequent to the time when the work or labor was commenced, where a miner was hired for a month, and continues from month to month, his lien is subsequent to an intervening mortgage from the end of the current month during which the mortgage was recorded.

Trust Co. v. Quarry Co., 31 Eq. 89 (1879). After a New Jersey. decree in foreclosure and execution issued against an insolvent corporation, it quarried certain stone on the mortgaged premises, which stone still remained on the ground. Held, as between mortgagor and mortgagee, such stone was subject to the mortgage. But under the circumstances of the case, it was subject to the prior lien under the statute for quarrymen's wages.

Oregon.

Williams v. Toledo Coal Co., 25, 426 (1894). The lien given by the act of Feb. 20, 1891 (Laws, 1891, p. 76), applies to claims on which minerals have not yet been found, as well as to those which are productive.

The lien given by this act does not include labor done on a wagon road, not constituting an incline or excavation, since when liens are given for specified classes of work other classes are impliedly excluded.

Honeyman v. Thomas, 25, 539 (1894). A derrick erected by a tenant in a quarry by placing a post upright in a socket upon the ground is a trade fixture, and not subject to a mechanic's lien.

Reed's Ap., 18, 235 (1852). The statutory preferPennsylvania. ence given to miners wages in the distribution of the proceeds of a sheriff's sale, is not limited to the proceeds of personal property at the mines, but extends to the personal estate generally of their employers.

Beatty's Ap., 3 Grant, 213 (1857). Under the act of April 2, 1849, sec. 3, miners' wages are a preferred debt. But when a partnership is the debtor, a judicial sale of the separate interest of one of the partners does not entitle the miners to preferred payment out of the money so made.

Wood's Ap., 30, 274 (1858). In the distribution of the proceeds of a sheriff's sale of a lease of coal mines, and of personal property on the leased premises, the landlord's claim for one year's arrears of rent has, under the statutes, a priority over the claims of miners and laborers' claims.

Castor v. Mc Shaffery, 48, 437 (1865). One hired to take stone out of the quarry of a third person by a contractor to furnish stone to a turnpike company, has no such property in stones quarried by him after his employer has abandoned the contract, as will enable him after

leaving to maintain trover for the same against the agent of the company. He is without title, possession, or lien.

Esterly's Ap., 54, 192 (1867). A railroad down a slope of the interior of a mine is not an improvement or fixture within the mechanics' lien law of Feb. 17, 1858, which creates such a lien on all" improvements, engines, pumps, machinery, screws, and fixtures erected by tenants of leased estates." "Improvements" in the act does not apply to temporary and insignificant additions, but to such permanent and substantial erections as essentially augment the interest which the tenant has in the land.

Vandergrift's Ap., 83, 126 (1876). One who contracts to drill an oil well, furnishing tools, ropes, and fuel for the same for a certain sum, is entitled to a mechanic's lien under the act of March 7, 1873, sec. 2, which provides that "All persons doing work for, on, or about the erection, construction, or repair of any engine, etc., upon any leasehold estate, or for boring, drilling, or mining on said lease or lot for the improvement or development of the same," shall have a lien on personal property and fixtures.

Taylor v. Smith, 1 Chester Co., 106 (1877). Men employed to dig a mineral from the surface of the earth are miners, within the act of April 9, 1872, making wages of certain employees preferred claims.

Where, however, the time occupied in mining cannot be separated from that employed in farm work, no preference can be allowed.

Willauer's Ap., 1 Chester Co., 533 (1882). In the distribution of the proceeds of the sale of a piece of real estate upon which was a kaolin mine, a preference was claimed by one whose duties were to solicit and obtain orders for clay, upon which he received a commission; he also performed other occasional services, but his claim was for commissions under his contract. He was not entitled to a preference. "He was not a miner or mechanic; neither was he a clerk or laborer within the meaning of the act" (of April 9, 1872).

Shainline's Ap., 2 Walker, 325 (1883). Building stones are minerals; and laborers in a quarry are miners within the acts of 1872 and 1878, giving preference to miners for wages. They likewise have this preference under the act of 1883.

Periepi v. Frankenfield, 1 Lancaster Law Review, 181 (1884). Laborers engaged in quarrying stones are miners. They are entitled to have their wages preferred in the distribution of the proceeds of a sheriff's sale, under the act of June 13, 1883.

Flagstaff S. Min. Co. v. Cullins, 104 U. S. 176 (1881), Utah. affirming Cullins v. Flagstaff S. Min. Co., 2 Utah, 219. The agent of a mining company employed the plaintiff, for an indefinite time, to direct the work in its mine, with authority to employ and discharge miners, and procure and purchase supplies for working the mine. It was his duty to plan, oversee, and direct the work in the mine, direct the shipping of ore, and generally to control and direct the actual working and development of the mine. In the course of these duties he did some manual labor. "He was not the general agent of the mining business of the plaintiff in error. That office was filled by Patrick. He was not a contractor. The services rendered by him were not of a professional character, such as those of a

mining engineer. He was the overseer and foreman of the body of miners who performed the manual labor upon the mine. He planned and personally superintended and directed the work, with a view to develop the mine and make it a successful venture. He appears, from the findings, to have performed duties similar to those required of the foreman of a gang of track hands upon a railroad, or a force of mechanics engaged in building a house. Such duties are very different from those which belong to the general superintendent of a railroad, or the contractor for erecting a house.

"Their performance may well be called work and labor; they require the personal attention and supervision of the foreman; and occasionally in an emergency, or for an example, it becomes necessary for him to assist with his own hands. Such duties cannot be performed without much physical exertion, which, while not so severe as that demanded of the workmen under the control of the foreman, is nevertheless as really work and labor. Bodily toil, as well as some skill and knowledge in directing the work, is required for their successful performance. We think that the discharge of such duties may well be called work and labor, and that the District Court rightfully declared the person who performed them entitled to a lien, under the law of the Territory."

II. HEALTH AND SAFETY OF MINERS.

In all those States where mining is an important industry, statutes have been enacted providing, in greater or less detail, measures looking to the protection of the lives and health of those engaged in the hazardous employment of mining.1

1 United States, Act March 3, 1891, 1 Supp. Rev. Stats. 948; Alabama, Act Feb. 16, 1893, Sess. Laws, 607; Act Feb. 18, 1895, Sess. Laws, 1230; California, Act March 13, 1872, p. 413; Act March 27, 1874, p. 726; Colorado, M. A. S. 31813221; Idaho, Act March 6, 1893, p. 152; Act March 11, 1895, p. 160; Illinois, Hurd's Rev. Stats. 1895, ch. 93; 2 Starr & Curtis Ann. Stats. ch. 93; Constn. sec. 29, art. 4; Indiana, Horner's Rev. Stats. 1896, secs. 5458-80 y, 7473-81; Iowa, Rev. Code 1888, tit. xi., ch. 8, secs. 7-19, p. 588; Laws 1890, ch. 46, secs, 1, 2, p. 71; Kansas, Gen. Stats. 1889, secs. 3830, 3832, 3846-61, 3864-7; Act March 10, 1891, p. 270; Act March 2, 1895, p. 312; Kentucky, Barb. & Car. Stats. 1894, secs. 2722-39; Michigan, 3 How. Ann. Stats. sec. 2287; Missouri, Gen. Stats. 1889, sects. 7061-77; Acts April 23, 1891, p. 182, April 18, 1893, p. 209, April 9, 1895, p. 225, April 11, 1895, p. 226, March 18, 1895, p. 227, April 9, 1895, p. 228; Montana, Pol. Code 1895, secs. 580-90, 3650-54; Crim. Code 1895,

secs. 474, 704, 705, 708, 722; Acts March 1, 1897, pp. 66, 245; Act March 4, 1897, p. 109; Nevada, Gen. Stats. 1885, secs. 290-98; New Mexico, Comp. Laws, 1884, secs. 1575-85; New York, Laws 1883, ch. 356; Laws 1890, ch. 394; Laws 1892, ch. 667; Laws 1893, ch. 339; Laws 1895, chs. 324, 670, 765; Ohio, Rev. Stats. 1890, secs. 290-306, 6871 sq.; 88 O. L. 396; 89 O. L. 164, 377; 91 O. L. 160; Pennsylvania, Acts June 30, 1885, P. L. 202, May 9, 1889, P. L. 154, June 2, 1891, P. L. 176, May 15, 1893, P. L. 52, July 15, 1897; South Dakota, Act March 1, 1890, ch. 112, p. 263; Tennessee, Act 1881, ch. 170; Code 1884, secs. 306-7; Utah, Act March 10, 1892, chs. 38, 41; Act April 5, 1896, ch. 113; Washington, Gen. Stats. 1891, secs. 2217-40, 2263-71; Act March 6, 1897, ch. 45, p. 58; West Virginia, App. to Code 1891, pp. 991-8, pars. 1-18; Wisconsin, 1 Laws 1891, ch. 109, p. 126; Wyoming, Laws 1888, ch. 40, sec. 12; Laws 1890, ch. 80.

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