Opinion
No. 28914.
December 8, 1930.
1. LOGS AND LOGGING. Lien on timber for labor or services exists only on timber of laborers' employer, thereby excluding lien on that not owned by employer ( Hemingway's Code 1927, section 2577).
Laws 1922, chapter 282, section 1 (Hemingway's Code 1927, section 2577), provides that every employee or laborer of a person in operating a sawmill or in cutting and shipping or rafting timber shall have a lien on all such lumber and timber of his employer, for his wages due from such employer.
2. LOGS AND LOGGING. Person employed by operator of sawmill to haul logs owned by another for sawing under contract held not entitled to lien for services ( Hemingway's Code 1927, section 2577).
Pursuant to contract with owner of logs, operator of sawmill engaged laborers to haul owner's logs to mill for sawing. No contractual relationship existed between laborer and owner of timber. Operator of sawmill failed to pay laborer balance alleged to be due him for hauling logs.
APPEAL from circuit court of Holmes county. HON. S.F. DAVIS, Judge.
Ruff Johnson, of Lexington, for appellant.
In order for appellee to have a lien on the logs and lumber attached under Code section 2577 above referred to, the appellant, Held, who owned the logs and lumber attached, must have employed Surber and have been operating the sawmill. It is admitted that Raper employed Surber and that Raper operated the sawmill, and that Raper did not own the logs and lumber attached.
E.T. Neilson, of Lexington, for appellee.
The appellee's claim is based on section 2577 of Hemingway's Code of 1927.
It is clear that it is the intention of the statute to give a lien, and does give a lien, to the laborer employed in the actual hauling of logs to the sawmill.
While there is authority to the contrary, the weight of authority is to the effect that the lien given to laborers applies not only to laborers with whom the owner directly contracts, but also to the employees of a person contracting with such owner, and it has been held that they are entitled to a lien whether the owner owes anything to the contractor or not.
Logs Logging, 38 C.J., page 224.
The appellee sued the appellant and E.E. Raper in the court of the justice of the peace, setting forth in the statement of his cause of action that he had been employed by Raper to haul logs to a sawmill which Raper was operating, and in which the appellant had an interest; that Raper owed him a balance of sixty-one dollars and nineteen cents for hauling the logs. The relief sought was a personal judgment against Raper, and a lien on the logs and lumber into which some of them had been sawed for the payment thereof; a judgment was rendered by the justice of the peace in accordance with the appellee's demand. Held appealed to the circuit court, where the right of the appellee to a lien on the logs was tried de novo by the trial judge, without a jury, on an agreed statement of facts, from which it appears that Raper was operating a sawmill; that Held owned some pine timber on the certain tract of land, and entered into a contract with Raper, by which Raper agreed to cut the timber, haul it to his mill, and saw it into lumber for him. Raper then employed Surber to cut the timber and haul it to the mill, which Surber did; and he owes Surber the balance alleged by him to be due therefor. Held was not a party to the employment of Surber to cut and haul the timber. On this agreed statement of facts the court below awarded the appellee a lien on the logs and a judgment on the appeal bond.
The statute on which the appellee's claim is predicated is chapter 282, section 1, Laws 1922, Hemingway's Code 1927, section 2577, which provides that: "Every employee or laborer of a person . . . in operating a sawmill, . . . or in cutting and shipping (or rafting) timber, shall have a lien on all such lumber and timber of his employer for his wages due by such employer," etc.
The appellee's contention is that the statute applies, not only to laborers with whom the owner of lumber and timber directly contracts, but also to the employees of a person contracting with such owner; and in support thereof refers to 38 C.J., page 224, wherein it is said that: "The weight of authority is to the effect that the lien given to laborers applies not only to laborers with whom the owner directly contracts, but also to the employees of a person contracting with such owner." An examination of the cases there cited will disclose that the statutes which the author of the article there had in mind are such as provide for a lien on lumber or timber for labor performed thereon, or in connection therewith, without limitation on the ownership thereof, or for such a lien for labor performed "at the instance of the owner or his agent," under which the courts hold that a person, contracting with the owner of timber for cutting and hauling it, is the agent of the owner, within the meaning of the statute.
The lien here given is not on all lumber or timber for labor performed thereon, or in connection therewith, but on the lumber or timber of the laborer's employer, thereby excluding, ex vi termini, a lien on lumber and timber not owned by the employer.
The judgment of the court below will be reversed, and the appellee's petition, in so far as it seeks a judgment against Held or a lien on the lumber and logs, will be dismissed.
Reversed, and judgment here for the appellant.