APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.
Mr. Charles Blenman and Mr. Samuel L. Pattee, for Appellant.
Mr. John W. Ross and Mr. L. L. Wallace, for Appellees.
Albert Steinfeld & Co., a corporation, hereinafter called plaintiff, brought suit against Allison Mining Company, a corporation, and Tom Reed Gold Mines Company, a corporation, hereinafter called defendants, for the purpose, among other things, of foreclosing a lien upon certain mining claims owned by the defendants. There were [41 Ariz. 341] other defendants, but since they have not appealed we need not consider them. It was stipulated between the parties that the El Oro Mining & Milling Company, a corporation, hereinafter called the mining company, was in possession of the claims against which the lien was sought to be enforced under a certain lease agreement with the defendant owners, and that plaintiff sold to said mining company $844.55 worth of goods used by the latter on said claims. The goods were furnished between December 30th, 1930, and May 19th, 1931, and on August 21st, 1931, plaintiff recorded a notice and claim of lien containing the matters required by the provisions of section 2021, Revised Code 1928, and duly served the same.
The defense was based upon two grounds, first, that the claim of lien was not filed and recorded within ninety days after the last item of merchandise was furnished the mining company, and, second, that defendants had properly given a "no lien" notice under the provisions of section 2029, Revised Code 1928. This last notice was offered in evidence, but was objected to on the ground that it did not sufficiently
describe the mining claims covered thereby, in that the notice did not give the book and page where the location notices of said claims were recorded, and contained no physical description of the claims except by giving their names and the district, county and state where they were located. The trial court held the no lien notice above referred to was insufficient, but that plaintiff had failed to file and record its claim of lien within the time fixed by statute, and therefore rendered judgment for defendants. From said judgment this appeal is taken.
The first question we consider is whether or not in order to fix and secure a lien against a mining claim it is necessary that a notice and claim of lien be recorded within ninety days after the last item for [41 Ariz. 342] which the lien is claimed is furnished. Liens of this nature are wholly creatures of the statute, and their effect depends entirely upon the interpretation of the law creating them. On reading the entire statute applying to the matter it is obvious that it is not definite on the point involved, and we must therefore endeavor to determine the legislative intent by the usual methods. One of the best ways of ascertaining this intent is a review and comparison of the Arizona statutes on this subject from the beginning. The first lien law which we find is one approved December 30th, 1865. This statute, so far as material for our purpose, reads as follows:
"1476. All artisans, builders, mechanics, lumber merchants, and all other persons performing labor or furnishing material for the construction or repairing of any building, wharf, superstructure, or for work done upon any lode or mining claim, shall have a lien on such building, wharf, superstructure, lode or mining claim for the labor done or material furnished by each respectively."
"1477. Every person wishing to avail himself of the benefits of this act shall file in the recorder's office of the county in which such building, wharf, superstructure, lode or mining claim is situated, within ninety days after the completion of such building, wharf or superstructure, or after such labor has been performed, a just and true account of the demand due him, after deducting all proper credits and assets, and shall verify said account by his own oath or the oath of some other person, and shall also file at the same time a correct description of the property to be charged with such lien. . . ."
"1481. No such lien shall bind any building, wharf, superstructure or other work for a longer period than six months after filing the same. . . ."
It is obvious from the language of this statute that any lien granted by the act, including those applying to mining claims, failed unless the claimant filed his statement of lien in the recorder's office within ninety [41 Ariz. 343] days. This act was carried over into the compiled laws of 1877 verbatim.
In 1887 the Code was revised, the different titles and sometimes even chapters of the revision being adopted as separate acts. Title 43 of the Civil Code is entitled "Liens" and chapter 2 thereof is headed "Mechanics', Laborers' and Others," and reads in part as follows:
"2258. That any person or firm, lumber dealer, artisan or mechanic, who may labor or furnish material, machinery, fixtures or tools to erect any house or improvement, or to alter or repair any building or improvement whatever, shall have a lien on such house, building, fixtures or improvements, and shall also have a lien on the lot or lots or land necessarily connected therewith, to secure payment for labor done, lumber, material, machinery or fixtures and tools furnished for construction, alteration or repairs."
"2259. In order to fix and secure the lien herein provided for, the person or firm, contractor, mechanic, artisan or lumber dealer performing labor or furnishing material shall have the right at any time within sixty days after the completion of such labor or the completion of the furnishing of such material to file his contract in the office of the county recorder of the county in which such property is ...