Opinion
Rehearing Granted Feb. 18, 1931.
Appeal from Superior Court, Los Angeles County; William Hazlett, Judge.
On rehearing.
Former opinion modified, and judgment of lower court modified, and, as modified, affirmed.
For former opinion, see 295 P. 552.
COUNSEL
Ray W. Bruce, of Los Angeles, for appellant.
Frank G. Swain, of Whittier, for respondents.
OPINION
PLUMMER, J.
This is an appeal from a judgment directing foreclosure of a mechanic’s lien.
The record shows that on or about the 16th day of August, 1924, the appellant leased two lots of land to one R.T. Colter, giving him the exclusive right to explore, mine, excavate, and obtain oil, asphaltum, petroleum, natural gas, and any other hydrocarbon substances contained in said premises. The lease was to continue for a period of twenty years. On or about January 27, 1925, R.T. Colter assigned said lease to Roy W. Perkins. On February 3, 1925, the erection of an oil derrick was begun on lot No. 23, adjoining lot No. 22, the one involved in this action. As the judgment for the foreclosure of a lien does not involve lot 23, no further attention need be given as to what actions were taken in relation thereto. Thereafter, and on or about the 10th day of September, 1925, Roy W. Perkins commenced the erection of an oil derrick on lot No. 22 in block 19, of Athens, as per map recorded in book 8, page 146, of maps, in the office of the county recorder of Los Angeles county. Within ten days thereafter, and on the 16th day of September, 1925, the appellant posted a notice of nonliability, and on the same day filed a verified copy thereof in the office of the county recorder of Los Angeles county. For the erection of said derrick the plaintiffs in this action furnished lumber and materials which actually went into the erection and became a component part of the derrick erected upon said lot No. 22.
Upon this appeal only two questions are presented: First, the sufficiency of the notice of nonliability; second, whether the erection of an oil derrick upon the premises constitutes a lienable improvement. A third question is presented to the effect that both lots included in the lease to which we have referred should have been included in the lien filed by the respondents. The record, however, shows that the lots are separate tracts, and this statement is a complete answer to the appellant’s contention. No question is made as to the amount of the judgment or as to the sufficiency, in form and substance, of the notice of lien filed by the respondents. The trial court held the notice of nonliability insufficient, and also held that the erection of an oil derrick for the purposes of exploring the premises for oil, constituted a lienable improvement within the lien laws of the state. The notice of nonliability posted and filed for record by the appellant is in the following words and figures:
"Notice of Non-Liability
"Under Section 1192, Code of Civil Procedure.
"To All Whom it May Concern, and particularly to all persons who may furnish labor or material, or both, for or upon all or any part of that real property situate in the City of Los Angeles, County of Los Angeles, State of California, described as follows: Lots Twenty-two (22) and Twenty-three (23) in Block Nineteen (19) of Athens, as per map recorded in Book 8, page 146 of Maps, in the office of the County Recorder of said County, or for the improvement upon said land or any part or parcel thereof, or for the construction, alteration or repair of any work or improvement thereon;
"Notice is hereby given by the undersigned, that he is the owner of said described land and being the land upon which this notice is posted; that he will not be responsible for any labor or material delivered upon said premises or used in the construction, alteration or repair of any work or improvement now being, or which may be hereafter constructed, made or done upon said land or any part thereof. Dated September 16, 1925.
"Lawrence G. Brubaker,
"By [Signed] Ray W. Bruce, His Attorney."
Section 1192, Code of Civil Procedure, providing for the filing of a notice of nonliability, sets forth when such notice shall be filed, by whom it shall be filed, and also specifies what such notice shall contain, to wit: "Said notice shall contain a description of the property affected thereby sufficient for identification, with the name, and the nature of the title or interest of the person giving the same, name of purchaser under contract, if any, or lessee if known; said copy so recorded may be verified by anyone having a knowledge of the facts, on behalf of the owner or person for whose protection the notice is given." The notice posted and filed for record in this case did not give the name of the lessee, nor does it state that the name of the lessee was unknown. The record before us shows that the owner of the premises had executed a lease thereof, and therefore must be held to have known the name of the person to whom he leased the premises. The record shows that the lessee of the owner assigned his interest in the lease, but it does not appear that the owner ever consented thereto, nor does it appear that the owner did not know of the assignment. This, however, does not change the effect of the requirement of the statute that if the owner has leased the premises, the name of the person to whom he has leased must be given in the notice. Prior to 1925, section 1192, Code of Civil Procedure, did not require that the notice should include the name of the person to whom the premises had been leased, if leased. In 1925 (Stats.1925, p. 304), the section of the Code which we are considering was amended so as to require the including of the name of the lessee, if known, and also the name of anyone holding a contract of purchase. From this the only conclusion deducible is that the Legislature considered the inclusion of such facts within the notice to be material, to the intent and purpose that anyone furnishing material to the occupant of the premises might ascertain what, if any, title he possessed, and be furnished the means for obtaining information in relation thereto. We do not need to cite authorities to the effect that the courts adopt the rule of a liberal construction relative to mechanic’s liens, and therefore must follow a strict construction of any act or provision by which the owner of property upon which improvements are made, may relieve himself from, or escape liability. We may, however, cite one case which supports the conclusion of the trial court in this cause.
In Pasqualetti v. Hilson, 43 Cal.App. 718, 185 P. 693, the sufficiency of the notice of nonliability was before the court. The notice contained all the provisions then required to be stated in the notice by section 1192, Code of Civil Procedure, but was acknowledged instead of verified, and was recorded in that form. The court held that the failure to verify the notice and to file a verified notice of record rendered the notice insufficient. In that case, as contradistinguished to the present, the body of the notice contained all the data required to be set forth by the provisions of the Code.
The appellant calls our attention to the case of Allen v. Wilson, 178 Cal. 674, 174 P. 661, 663, where it was held that a claim of lien which did not state the name of the owner of the premises upon which the lien was claimed, did not affect the validity of the lien. The court there said: "The plaintiff is only required to state names mentioned (owner etc.), if known. If the names are not known, the claim filed is sufficient if it is silent on the subject. (Citing cases.) The name of the owner, or reputed owner, is not presumably within the knowledge of the claimant." (Citing cases.) Here, where the owner of the premises is the defendant, and the owner is the one who has given the notice of nonliability, there can be no presumption of lack of knowledge of the name of the person to whom he has leased the premises. The record shows that the owner, to wit, the appellant, at the time he filed the notice of nonliability, possessed a knowledge of the facts which should have been set forth therein. The strictness required in complying with the Code provisions as to the notice of nonliability is further illustrated in the case of Leoni v. Quinn, 189 Cal. 622, 209 P. 551, where it was held that actual notice was insufficient, and that the notice of nonliability must be given in full compliance with the requirements of the section.
Does the erection of an oil derrick afford the basis for a lien to one furnishing material entering into such structure? Section 1183, Code of Civil Procedure, gives a lien to one "furnishing materials to be used or consumed in or furnishing appliances, teams and power contributing to the construction, alteration, addition to or repair, either in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, wagon road or other structure, or other work of improvement." Is an oil derrick reasonably included within any of the terms set forth in this section of the Codes? This requires an interpretation of what is meant by the words "other structure or other work of improvement."
In the case of Helm v. Chapman, 66 Cal. 291, 5 P. 352, the question arose as to whether a lien existed for work performed and materials furnished in sinking a shaft upon a mining claim. The court there said: "The section of the Code [section 1185 of the Code of Civil Procedure] treats of the ‘building, improvement, or structure’ as separate and distinct from the land upon which it is erected or constructed. We think, without doing violence to the received meaning of language, a mine or pit sunk within a mining claim may be called a structure. Section 1183 does not, it is true, provide for a lien upon mines, but upon ‘mining claims.’ The lien, if it exists at all, extends to the whole claim. Strictly speaking, of course, a ‘mining claim’ cannot be constructed, altered, or repaired. The intention of the law-makers seems to have been to give a lien upon the whole claim, for labor performed on, and for materials furnished for and used in, any structure, or on or in the alteration or repair of any structure on or in the mining claim." The court held the plaintiff entitled to a lien.
In the case of Western Electric Co., Inc., v. Colley, 79 Cal.App. 770, 251 P. 331, 333, this court, in consideration of the word "structure," used the following language: "We think the Legislature, in the use of the term ‘other structure,’ must have had in mind the comprehensive language of the Constitution where use is made of the word ‘property,’ and that a liberal and fair interpretation would lead to the conclusion that the Legislature so intended, and not that the term ‘other structure’ is limited in its meaning to an object, which is in kind similar either to a house, a wharf, a bridge, or a wagon road, but includes all objects built upon the soil, and, in some instances, extending beneath the surface of the soil, which partake of the nature of permanency, that is, a structure is an object which is built upon the soil and is not necessarily a house, or similar to a house, a bridge, or similar to a bridge, but is property, under the constitutional definition, having the nature of permanency and put in place to accomplish some definite purpose." The question before the court in that case was whether a lien existed upon a power line, and it was there held that a power line, including the poles supporting it, constituted a structure.
In 18 Ruling Case Law, 892, we find the following in relation to the interpretation given by different courts to the words "other improvement or structure": "Where the statute provides for a lien upon any building, erection, etc., or ‘other’ improvement or structure, the term ‘other’ improvement or structure is interpreted by some courts in accordance with the familiar doctrine ejusdem generis. That is, the term in question is regarded as including only such erections or constructions as are similar to the improvements or structures named. *** In some of the statutes the improvements specifically mentioned are numerous and the term ‘other’ has been construed to give the acts a very wide application. So, in such a connection, the phrase has been applied to a completed oil well with all its appliances, and to a mine or mining claim. The right to a lien for the work of digging or drilling a well has sometimes been denied under a statute giving a lien for ‘other improvements’, but other courts, giving the statute a liberal construction, have considered the phrase as clearly sufficient to give the right to a lien for such work."
In Sunburst Oil & Refg. Co. v. Callender, 84 Mont. 178, 274 P. 834, 837, under a statute somewhat similar to our own, the Supreme Court of Montana held that a lien existed for materials furnished and work done upon an oil well. In so ruling the court used the following language: "Undoubtedly, having drilled well No. 4 and furnished all fixtures and equipment necessary to complete the well and equip it for operation, and not having been paid for his labor and material, defendant had a lien upon the property on which he did the work and placed the improvements," etc.
In Parke & Lacy Co. v. Inter Nos Oil & Devp. Co., 147 Cal. 490, 82 P. 51, 52, the Supreme Court had before it the question of a lien for work done upon a well, where the testimony was not clear as to the kind of well, and used the following language: "The allegations of the complaint bring the case within this provision" (referring to a provision in section 1183, Code Civ.Proc.) "and we are not called upon to decide whether this provision or the one referring to mining claims would be applicable to an oil well, it not appearing that this was an oil well. There is, however, much force in the argument that any and all wells, for whatever purpose constructed, fall within the provision already quoted, and that when the word ‘well’ was inserted therein by amendment in 1899 (St.1899, p. 33, c. 35), and in section 1185, Code Civ.Proc., at the same time (St.1899, p. 24, c. 23), it was contemplated thereby to include oil wells." See, also, notes to Peaceable Creek Coal Co. v. Jackson, Ann.Cas.1912B, p. 11, where the word "structure" is defined as follows: "The term ‘structure’ when applied to a material thing made by human labor, whether considered etymologically or with reference to common usage, or with regard to the words by which it is immediately preceded in the statute, means something composed of parts or portions which have been put together by human exertion. *** Not only was the oil well *** a structure in the literal sense, but when it is regarded in connection with the structures specifically named in the statute, it must, we think, be considered as within the legislative intent in the use of the statutory phrase ‘other structure.’ "
In 40 C.J. p. 65, we find the further definition of the word "structure": "The meaning of the word ‘structure’ as used in a statute authorizing a lien for labor performed or materials furnished in connection with the creation, improvement, or repair of a structure, is to be ascertained by referring to the meaning of the words associated with it, and where all the associated terms designate classes of property attached or appurtenant to, or a part of, the land, the word ‘structure’ is to be likewise restricted, notwithstanding the fact that it is susceptible to other definitions. The word ‘other structure,’ following an enumeration of particular things, comprehends all the properties specifically enumerated, and any similar thing constructed, should the enumeration prove incomplete, but it does not embrace matters not resembling, related to, or belonging in, the same class with the structures or improvements specifically enumerated." Following these definitions, even though we were to adopt the strictest interpretation, we think that an oil derrick erected upon premises for the purposes of boring a well, comes within the definition of the terms "other structure or other work or improvement," as found in section 1183, Code of Civil Procedure. A reference to the language of the section preceding the word "well" enforces this conclusion. We find therein these words: "Materials to be used or consumed in or furnishing appliances, or *** contributing to the construction, alteration, addition to or repair, either in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well," etc. Here, it is specifically provided that a lien is given for any materials or appliances used or consumed in the construction of a well. No well could be dug without the construction of a derrick, or, as it is sometimes called in relation to oil wells, "oil rig," and therefore the materials which enter in, and are consumed in the construction of the oil rig or derrick, erected for the purposes of digging a well, furnish a basis for a mechanic’s lien.
It will be noticed also that the language of the statute includes materials furnished to be used or consumed, and not materials that have been used or consumed. The record shows in this case that after the materials were consumed in the building of the derrick, the well was not in fact dug. The fact that the actual digging of the oil well referred to in this case was abandoned after the furnishing of materials and the consuming thereof in the erection of the derrick, does not affect the right of the plaintiff in this action to a lien for materials furnished. Under the various sections of the Code of Civil Procedure the abandonment of work or the abandonment of the improvement by the contractor or owner does not destroy the right to a lien for work already done, or materials furnished, although it does in some particulars affect the procedure.
Nor do we find any merit in the contention that the provisions in a lease which authorize the removal of an improvement or structure which otherwise, when erected or created, would constitute a part of the real estate, bar the right to a lien. Those provisions are personal only to the owner and the lessee.
The judgment is affirmed.
All concur.