provement of the mine, it has been held that a teamster has no lien for hauling ore. But this is certainly against the weight of reason and authority. There is no valid reason why the ore-hauler who contributes to the marketing of the product from the mine, or to hauling supplies thereto, cannot be equally protected. As said by Hillier, District Judge: "The mill upon which the lien is claimed is one for crushing the quartz and separating the precious metals therefrom, and the labor performed by petitioner (this was in bankruptcy proceedings) was hauling quartz for the bankrupt to be crushed at this mill. This, it is said, is not the performing of labor in carrying on the milling, but I think it must be so considered. These laws always receive a liberal construction in favor of laborers' liens. The labor of hauling the quartz to a mill of this character is indispensable to carrying it on, and the language of the statute will not have to be strained in the least to include within its terms the person performing such labor."2 It has even been held that a co-tenant has a preferred claim for improvements against the mortgagee.3 § 1691. Same-Carrying on works-Drifting in tunnel. In Nevada, under a statute authorizing a lien upon mines and also for carrying on any work upon mills or reduction works, it was held that a teamster hauling ore to the mill was entitled to a lien; but in California it was held as matter of law that "drifting in a tunnel" was not synonymous with "mining a tunnel," for which a lien was authorized by statute, nor was it labor in construction, altera 1 Barnard v. Kelly, 4 Colo. 251. See Wickham v. Hardy, 5 Jur. 871; Cumberland Ry. Co. v. Slack, 40 Md. 161. 2 In re Hope M. Co., 1 Sawy. 710, 9 M. R. 364. See also Warner v. Hudson River R. Co., 5 How. Pr. 454; Atcherson v. Troy R. Co., 6 Abbott's Pr. (N. S.) 329; Hill v. Newman, 38 Pa. St. 151. 3 Stenger v. Edwards, 70 Ill. 631, 9 M. R. 368; Mellor v. Vallentine, 3 Colo. 260. 4 Gould v. Wise, 18 Nev. 253, 3 Pac. Rep. 30. But see, to the contrary, Barnard v. Kelly, 4 Colo. 251. tion or repairs of any building, or improvement on or in any mine, and the claim of lien was denied.1 § 1692. General principles -- Liberal construction — Remedy. The purpose of our excursion into the subject of liens at all forbids any extended examination into general principles. We have sought to confine our inquiry to special matters relating to mines and mining property and to persons performing labor or making improvements thereon. We have attempted to show that the lien law is remedial in its nature and character, and that a liberal rule of construction should be applied. With reference to the remedy, however, the rule becomes more stringent, and in enforcing the remedy the statute must be strictly pursued. Respecting the general rule that the statute, as regards the right itself, should be liberally construed, the supreme court of Nevada said: "We have repeatedly declared that the act relating to mechanics' liens should be liberally construed; that the spirit and purpose of the law is to do substantial justice to all parties who may be affected by its provisions; and that courts should avoid unfriendly strictness and mere technicality." "2 § 1693. Assignability.- Much doubt originally existed as to whether a lien of any kind, being a personal right at the common law, could be assigned. But the later decisions settle the doubt in favor of the assignability of all liens, and in many of the states they are made assignable by statute.3 § 1694. Same subject-Assignable - General provisions. Substantial compliance with the statute is generally requisite, and the lien attaches in favor of all persons who fairly come within the provisions of the statute, their claims, of course, being based upon contract. A claim in excess of the real amount does not vitiate the lien for the amount actually due. Being a mere personal right, the old authorities held that it was not assignable, but the later decisions have taken a more practical view of the subject, and we think the correct one; and it may now be considered as settled that, in the absence of statute to the contrary, even a claim for a miner's lien is assignable. The debt would be assignable in the absence of the lien, and no good reason can be found, and it is believed that none exists, why the statutory adjunct or mortgage should not also be assignable. Where claims are worked in a group, the lien attaches to the entire group. ARTICLE C. Against Whom, What Interest and What May Be Reached - Lessee's and Working Bond Interests. § 1700. Against whom - Leases and working bonds. 1702. On mine worked by option holder. 1703. Iowa rule- Lessor held liable. 1704. Prospecting gives no right to lien. 1705. Agent - Who is. 1706. Notice and foreclosure. 1707. Knowledge of owner Strict construction. 1708. Summary - The doctrine of this chapter restated. 1 Malone v. Big Flat Gravel Co., 76 Cal. 583, 18 Pac. Rep. 772; Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. Rep. 751; Folsom v. Cragen, 11 Colo. 205, 17 Pac. Rep. 515; Skyrme v. Occidental Co., 8 Nev. 219; Malter v. Falcon M. Co., 18 Nev. 209, 2 Pac. Rep. 50. 2 Nolan v. Lovelock, 1 Mont. 224, 9 M. R. 360; Allen v. Frumet M. Co., 73 Mo. 688; Davis v. Alvord, 94 U. S. 545. 3 Skyrme v. Occidental M. Co., supra; Ford Gold M. Co. v. Langford, 1 Colo. 62; Tuttle v. Howe, 14 Minn. 150. 4 Tredinnick v. Red Cloud Co., 13 Pac. Rep. 152; Bassick M. Co. v. Schoolfield, 10 Colo. 146, 14 Pac. Rep. 65. § 1700. Against whom - Leases and working bonds.— It may be stated as a general rule that no lien will exist except by virtue of a contract with the owner. Whence it follows that in all cases of leases and working bonds, where the owner has no interest in the work itself, except the reception of certain proceeds in the way of rent or royalties, his interest will not be the subject of a lien for work done or liabilities incurred by the lessee.1 And in such case the lien, if one lies at all,2 will only reach the leasehold interest. A correct illustration of this rule is found in Montana, where this subject has been regulated by statute which provides in effect that the interest of the proprietors in leased premises may not be charged with a lien for labor performed for the use and benefit of the tenants and lessees.* The supreme court, in construing a contract by the terms of which S. was to operate a mine for one year; to have exclusive charge of the work; furnish all labor and materials, and to receive as compensation eighty per cent. of the net returns of all ores marketed, which should be marketed in the name of the owner, held S. to be a lessee of the mine, and therefore that the interest of the owner was not chargeable with a lien for labor and materials furnished at the request of S.5 § 1701. To what may attach- Mineral land not so located.— Ordinarily, in the absence of statute, a lien will not attach to a leasehold interest, and of course, as previously stated, where it does attach it is only to the lessee's and not 1 United Mining Co. v. Hatcher, 25 C. C. A. 46, 79 Fed. Rep. 516, modifying s. c., 75 Fed. Rep. 368; Jurgensen v. Diller, 114 Cal. 491, 46 Pac. Rep. 610; Davidson v. Jennings (Colo.), 60 Pac. Rep. 354; Schweizer v. Mansfield, 14 Colo. App. 236, 59 Pac. Rep. 843; Little Valeria G. M. & M. Co. v. Ingersoll, 14 Colo. App. 240, 59 Pac. Rep. 970; Pelton v. Minah Cons. M. Co., 11 Mont. 281, 28 Pac. Rep. 310; Stinson v. Hardy, 27 Oreg. 584, 41 Pac. Rep. 116. 2 Post. § 1701. 4 Act March 9, 1887, Extra Sess. 1887, p. 71. 5 Pelton v. Minah Cons. M. Co., supra. 6 Ante. § 1700. the lessor's or proprietor's interest. This matter has been regulated by statute in nearly all the mining states, in some of which the miner is given a lien on the lessee's interest in the property, while in others it is restricted to freehold estates, or leasehold interests exceeding two years.1 The supreme court of California, as we have already seen, has adopted the very narrow construction as to the meaning of the words "mining claim " as used in the statute, and restricted the operation of the lien law to mining claims which were located as such. In the last case the meaning of the court is somewhat obscured by unnecessary dictum, but, if we glean the correct conclusion, it was that where a mining claim was partly made of regular mining claims and partly of land patented as a Mexican grant, the lien would not extend to the portion not located as a mine, and substantially the same rule was announced in the other case; but, as above noted, we have fully discussed this matter elsewhere. The strength of our reasoning and the weakness of that of the court is illustrated by the rule laid down by the supreme court of Oregon, that where a statute gives a lien on a mining claim for work and materials, this has been held to apply to a mining claim where valuable minerals have not, as well as to land where they have, been discovered.1 The general rule which applies to the description of mining property in conveyances, viz., that it must be described with such particularity as that the exact land intended to be included can be readily ascertained, must be followed in the description of property sought to be charged with a miner's or mechanic's lien. Failure to do this makes the lien ineffectual. For instance, where a notice of lien incorrectly de 1 A synopsis of the statutes of the different states upon the subject of miners' liens is contained in Appendix B, post. 2 Ante, § 1684. 3 Williams v. Santa Clara M. Co., 66 Cal. 193, 5 Pac. Rep. 85, cited ante, § 1685; Bewick v. Muir, 83 Cal. 368, 23 Pac. Rep. 389. 4 Williams v. Toledo Coal Co., 25 Oreg. 426, 36 Pac. Rep. 159. |