I concur in the judgment on the ground that the record discloses that appellant assented to the creation of a statutory lien preferment as against itself. The facts were stipulated. On the first day of September, 1923, the respondents Donnelly and Clark became the lessees of 13,760 acres of land in Madera County formerly held under lease by the respondent Silva. While in possession of the premises Silva had mortgaged some 700 head of cattle to the plaintiff's assignor with the usual provision in the mortgage that on the default of the mortgagor the mortgagee would have the right to take possession of the mortgaged property without notice. On September 1, 1923, Silva was in default and the cattle were on said premises. On that day Donnelly and Clark notified the appellant that they were informed that the appellant had an interest in said livestock and that from September 1, 1923, a charge of one dollar per head per month would be made against the appellant for pasturage. Under date of September 5th the appellant's representative notified Donnelly and Clark that the cattle would be removed in ten days. They were not removed and when on November 22, 1923, their possession was demanded by the appellant such possession was refused on account of nonpayment of pasturage charges. Under these circumstances the implied consent of the appellant that pasturage charges would accrue
and the lien thereof attach would seem to have been satisfactorily shown.
But I cannot agree that under our law an agistor's lien has priority over a pre-existing recorded chattel mortgage. It is conceded that an agistor's lien did not exist at common law and the well-established rule is not questioned that under a statute which creates a lien which did not exist at common law such lien has no priority unless plainly authorized by the statute which creates it. Sections 3051 and 3052 of the Civil Code do not expressly create a preference as to the liens provided for in section 3051, and, in my opinion, such preference is not fairly implied from the language used. As to those which were liens at common law no difficulty is encountered, for under established rules they may be accorded priority. Such a lien was involved inMortgage Securities Co. v. Pfaffmann, 177 Cal. 109 [L.R.A. 1918D, 118, 169 P. 1033], where it was declared that under the sections of the code referred to the possessory lien of the repairer of personal property was superior to the lien of a pre-existing chattel mortgage. One who made, altered, or repaired an article of personal property had a lien at common law and the Pfaffmann case was necessarily limited in its effect to a repairman's lien. Nothing else was there involved or decided. That case recognized that the agistor had no lien at common law. In commenting upon such a lien it was there definitely stated that "under statutes creating agistor's liens where questions of priority arose, all the reasoning which . . . goes to support the priority of the repairer's lien was wholly absent." This for the reason that the agistment does not fall within the principle of improving personal property. The main opinion recognizes that the weight of authority in other jurisdictions is against the preferment of the agistor's lien. The rule is stated in 11 Corpus Juris, at page 652, with a citation of some forty-two cases from twenty-one states and the respondents have cited no authority to the contrary except Case v. Allen, 21 Kan. 217 [30 Am. Rep. 425], which, in Wilson v. Donaldson, 121 Cal. 8 [66 Am. St. Rep. 17, 43 L.R.A. 524, 53 P. 404], was stated to be a well-considered case upholding the priority of an agistor's lien provided by statute. But the supreme court of Kansas in Bank v.Brecheisen, 65 Kan. 807
[70 P. 795], was at pains to limit the effect of Case v.Allen, and the supreme court of Utah (Grubb v. Lashus, 42 Utah, 254 [129 P. 1029]) correctly says that courts are practically unanimous in disapproving the views expressed inCase v. Allen. So it may properly be said that the overwhelming weight of authority elsewhere is that an agistor's lien has no priority over a pre-existing chattel mortgage unless given such by statute. The main opinion declares that it is now the established rule in this state that the lienholders mentioned in section 3051 of the Civil Code have preferential liens over prior chattel mortgages. In my opinion this may not rightly be said. Rather should it be said that only such liens provided for in said section as were liens at common law should have such preference. As has been pointed out, such a common-law lien confirmed by statute was involved in the Pfaffman case and the reasons for its priority were there declared to be wholly lacking in the case of an agistment. Fifteen days after the decision in the Pfaffmann case this court decided in Guinn v. McReynolds,177 Cal. 230 [170 P. 421], that prior to 1917 section 2322a of the Political Code, which gave a lien and substantially the same right of foreclosure thereof as section 3052 of the Civil Code, did not prefer the lien therein created to a pre-existing chattel mortgage. Section 2322a was later amended to grant such preference. In Guinn v. McReynolds reference is made to many instances in which the statutes of this state have declared particular liens created to be prior and always with plain language to that effect. In neither section 3051 nor section 3052
is the priority of an agistor's lien declared and there is no case in this state and no well-considered case elsewhere granting such preferment in the absence of statutory authority.