Nightingale v. Taylor ( 1920 )

JOHNS, J.

1. It appears from the plaintiff’s lien that his claim is for work alleged to have been done in logging and manufacturing logs into lumber, and that it is upon the logs in the woods adjacent to the mill, in the mill pond and the roll-way, 50,000 feet of lumber at. the mill and 180,000 feet of lumber at the railroad siding at Silverton, about three miles from the mill.

There are three classes of liens provided by the act of February 20, 1891, Laws of 1891, page 117, the first three sections of which are identical with Sections 7461, 7462 and 7463, L. O. L., and all of which were enacted at the same time. Section 7461 reads in part' as follows:

“Every person performing' labor upon or who shall assist in obtaining or securing sawlogs, spars, piles, or other timber, has a lien upon the same for the work or labor done. * * ”

■ Under this section the lien may be enforced, not only upon the logs, but upon the manufactured product so long as it can be traced and identified. Section 7462 gives a lien to “every person performing labor upon, or who shall assist in manufacturing sawlogs or other timber into lumber,” so long as “the same remains at the yard wherein manufactured.” Under this section the right to a lien is limited to the manufactured lumber only, and only so long as it remains in the millyard. Such a lien is lost when the lumber is removed from the yard. Section 7463 provides that—

“Any person who shall permit another to go upon his timber land and cut thereon sawlogs, spars, piles, or other timber, has a lien upon such logs, spars, piles, and timber for the price agreed to be paid for such privilege, or for the price such privilege or the stumpage thereon would be reasonably worth.”

It will be noted that the nature and extent of this lien are almost identical with those of a logger’s lien under Section 7461, L. O. L.

The plaintiff contends that because sections 7461 and 7462 were enacted at the same time and are a part of the same statute, a logger’s lien can be combined with one for manufacturing lumber. If that .were true, for the same reason it would follow that a stumpage lien could also be combined with either or both of them, because Section 7463 was enacted at the same time and is a part of the same statute. Much importance is attached to the fact that Section 7467 says that “claims shall be substantially” in a certain form, and it is contended that the form given is identical for all of such liens. But, as pointed out in the opinion of the trial judge, in one instance the parenthetical modification reads “cut or manufactured,” and in another it. reads “cutting or manufacturing logs or lumber.” If it had been intended that the same words should be used in either class of items, there would be no reason for making the distinction.

This case was argued and decided in the Circuit Court prior to the publication of the opinion of this court in First National Bank v. Wegener, 94 Or. 318, 324 (181 Pac. 990, 186 Pac. 41), where it was held:

“Section 7461, L. O. L., giving laborer lien for labor in the cutting of logs, and Section 7462, providing for laborers’ lien for labor performed in the manufacture of lumber, though parts of the same act are separate and distinct from each other; the former being intended for security to the logger and the latter to the operators in the mill.

“Even if laborer could make and enforce a joint or dual lien for services in cutting logs under Section 7461, L. O. L., and in manufacturing lumber under Section 7462, he would be required to specify in his statement the amount and value of his labor for cutting logs, and the amount and value thereof in manufacturing lumber. ’ ’

It was never the intent of the legislature that a combined or lump lien could be enforced under sections 7461-7463, L. O. L., for logging, manufacturing lumber stumpage, without at least a segregation of the items constituting the lien and a specification of 'the amount of each item. It will be noted that the liens here do not segregate the time when the claimants were employed as loggers from the time that .they performed labor in the manufacture of lumber, or specify the amount claimed for each service. During the trial, over the objections of the defendants, the plaintiff undertook to prove these facts by oral testimony. The Circuit Court found that the testimony offered upon that point was more or less conjecture, not clear or satisfactory, and we approve that finding.

The decree is affirmed, without costs to either party.

ÁEEIRMED.

McBride, C. J., and Bean and Bennett, JJ., concur.