Hayward Lumber & Investment Co. v. Pride of Mojave Mining Co.

KLETTE, J., pro tem. This is an appeal from a judgment sustaining a demurrer to a third amended complaint without leave to amend, and dismissing the action. The complaint was to foreclose a materialman’s lien, upon real property in Kern County, described as follows:

“Northwest quarter (y&) of Section 33, Township 11 North, Range 12 West, S. B. B. & M., and those certain mining claims [147]located within said quarter-section and known as ‘Pride of Mojave', ‘Four Star’ and ‘Enterprise.’ ”

The notice of lien, a copy of which was attached to the complaint as an exhibit, described the property as follows:

“Section 22, Township 11 North, Range 12 West, S. B. B. & M., and those certain mining claims in said section known as Pride of Mojave, Four Star and Enterprise.”

It will be noted that the notice of lien describes the property as section 22, while the complaint describes it as the northwest of section 33. In so far as the notice of lien gives the wrong section number, it is fatally defective. (Bishop v. Hayward Lumber & Investment Co., 19 Cal. App. (2d) 234 [65 Pac. (2d) 125] ; D. I. Nofziger Lumber Co. v. Waters, 10 Cal. App. 89 [101 Pac. 38].) In the first of the above cases, the notice of lien described the property as section 3, while the foreclosure proceeding described it as section 30. In the second of the above cases the notice of lien described the property as lot 18 in block 5, while the property sought to be impressed with the lien was lot 18 in block 4. In each of these cases the court held that the lien could not be enforced, against the property described in the complaint.

Appellant urges, however, that the reference to the three mining claims, is a sufficient identification of the property. This contention is untenable. In the case of Fernandez v. Burleson, 110 Cal. 164 [42 Pac. 566, 52 Am. St. Rep. 75], plaintiffs performed labor on the Bare Bar mining claim. The notice of lien filed by them, referred to the claim as being in Virginia Bar Mining District, in Siskiyou County, California, and described it by monuments, metes, and bounds. This description did not fit the Bare Bar claim, but did fit an adjoining claim, the Otto Bar. The court held the description insufficient to charge the Bare Bar with a lien.

Appellant then relies on section 1203 of the Code of Civil Procedure, which provides that certain mistakes shall not invalidate the lien, and calls attention to the fact that the case of Fernandez v. Burleson, supra, was decided before this section was adopted. This is correct. However, the case of Bishop v. Hayward Lumber & Investment Co., supra, was decided long after the adoption of section 1203, supra, and contains the following statement of the law: