Jurgenson v. Diller

Britt, C. Action to enforce an alleged lien for labor on certain mining claims, together called the John Dix mine. Defendant became the owner by purchase at a sale of the ground on foreclosure of mortgage, and the sheriff’s subsequent deed therefor executed March 4, 1888. One Dix had previously been the owner, and after said March 4th he asked and obtained leave of defendant to remain on the premises, promising to take care of the same and make no expense for defendant. Without authority from the latter, Dix proceeded to work the mine, and hired plaintiff for this purpose. Under such employment plaintiff performed the labor [492]in question between November 1, 1888, and September 15, 1390, for which a balance remains unpaid.

It is provided in section 1183 of the Code of Civil Procedure, among various other things relating to the liens of mechanics and others on real property, that any person performing labor on a mining claim shall have a lien thereon for his work, whether done at the instance of the owner or his agent, “ and every contractor, subcontractor, architect, builder, or other person having charge of any mining.....shall be held to be the agent of the owner for the purposes of this chapter.” It is argued that under this section Dix was a person in charge of the mining, and hence was the agent of defendant in employing the plaintiff. But the presumption raised by the statute may be repelled. (Donohoe v. Trinity Min. Co., 113 Cal. 119.) The evidence here tended to show that when plaintiff did the work in question he knew that Dix did. not own the property, and was not working the mine as defendant’s representative; that Dix employed plaintiff on his own account, paid him such wages as were paid at all, and at no time assumed to act on defendant’s behalf. Obviously plaintiff had no just reason to expect payment from defendant, and cannot charge a lien upon his mine on any theory of Dix’s agency.

Section 1192 of the Code of Civil Procedure provides that every building or other improvement mentioned in section 1183, constructed upon any lands with the knowledge of the owner, shall be held to have been constructed at his instance, and his interest in the land shall be lienable accordingly, unless he shall, within three days after obtaining knowledge of the construction, alteration, or repair, post a written notice that he will not be responsible for the same, etc. Plaintiff urges that his claim of lien should be upheld because,, he says, defendant having the knowledge mentioned in this section yet failed to post such notice. That the notice was not posted is undisputed; and plaintiff testified at the trial that on a single occasion in the year