Colorado § 38-22-104 - Lien on mining property.

§ 38-22-104. Lien on mining property.

The provisions of this article shall apply to all persons who do work or furnish laborers or materials, or mining, milling, or other machinery or other fixtures, as provided in section 38-22-101, for the working, preservation, prospecting, or development of any mine, lode, or mining claim or deposit yielding metals or minerals of any kind, or for the working, preservation, or development of any such mine, lode, or deposit, in search of any such metals or minerals; and to all persons who do work upon or furnish laborers or materials, mining, milling, and other machinery or other fixtures, as provided in section 38-22-101, upon, in, or for any shaft, tunnel, mill, or tunnel site, incline, adit, drift, or any draining or other improvement of or upon any such mine, lode, deposit, or tunnel site; and to every miner or other person who does work upon or furnishes any laborers, coal, power, provisions, timber, powder, rope, nails, candles, fuse, caps, rails, spikes, or iron, or other materials whatever, as provided in section 38-22-101, upon any mine, lode, deposit, mill, or tunnel site. But when two or more lodes, mines, or deposits owned or claimed by the same person are worked through a common shaft, tunnel, incline, adit, drift, or other excavation, then all the mines, mining claims, lodes, deposits, and tunnel and mill sites so owned and worked or developed, for the purpose of this article shall be deemed one mine. This section is not applicable to the owner of any mine, lode, mining claim, deposit, mill, or tunnel where the work or labor has been performed for or the laborers or materials furnished to a lessee.

Source: L. 1899: p. 266, § 4. R.S. 08: § 4028. L. 15: p. 332, § 1. C.L. § 6445. CSA: C. 101, § 18. CRS 53: § 86-3-4. C.R.S. 1963: § 86-3-4. L. 2000: Entire section amended, p. 207, § 4, effective August 2.

ANNOTATION

I. General Consideration.

II. Persons Entitled to Lien.

III. Labor or Materials Furnished Lessees.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Mechanics' Liens Relative to Oil and Gas Operations", see 34 Dicta 207 (1957).

Purpose of section is to broaden and not to restrict the scope of this article. Chain O'Mines v. Lewison, 100 Colo. 186, 66 P.2d 802 (1937).

Provisions of section are governed by the same rules that apply to a lien upon other property. Wilkins v. Abell, 26 Colo. 462, 58 P. 612 (1899); Milwaukee Gold Mining Co. v. Tomkins-Cristy Hdwe. Co., 26 Colo. App. 155, 141 P. 527 (1914).

Services rendered must be at owner's instance. The services rendered, for which a lien is provided thereby, must be such as were rendered at the instance of the owner, or some one of the enumerated persons acting for him. Wilkins v. Abell, 26 Colo. 462, 58 P. 612 (1899).

Work for which lien on mine is given is that which is performed in the development and conservation of the mine and the results of which become incorporated with the mine so as to constitute a part of its value. Barnard v. McKenzie, 4 Colo. 251 (1878); Int'l Trust Co. v. Lowe, 66 Colo. 131, 180 P. 579 (1919); Climax Molybdenum Co. v. Specialized Installers, Inc., 12 B.R. 546 (D. Colo. 1981).

Planning and superintending development work upon the mines and in planning and supervising the erection of the mill and machinery are services for which a lien on a mine are given. Rara Avis Gold & Silver Mining Co. v. Bouscher, 9 Colo. 385, 12 P. 433 (1886).

Dredge for operation of placer is improvement of the land within the meaning of this section. Colo. Gold Dredging Co. v. Stearns-Roger Mfg. Co., 60 Colo. 412, 153 P. 765 (1915); Tiger Placers Co. v. Fisher, 98 Colo. 221, 54 P.2d 891 (1936).

No lien permitted where lienable and nonlienable items confused. Where proper services are so confused with nonlienable items that the value thereof cannot be ascertained, no lien can be allowed. Empire Coal Co. v. Rosa, 26 Colo. App. 230, 142 P. 192 (1914).

Extraction work done for mine not lienable. Work done in the extraction of coal, from a coal mine, does not give a lien. Empire Coal Co. v. Rosa, 26 Colo. 230, 142 P. 192 (1899).

Words "deposit yielding metals or minerals" include gold bearing sands or gravels, which are commonly known as placers. Colo. Gold Dredging Co. v. Stearns-Roger Mfg. Co., 60 Colo. 412, 153 P. 765 (1915).

Applied in Folsom v. Cragen, 11 Colo. 205, 17 P. 515 (1887); Davidson v. Jennings, 27 Colo. 187, 60 P. 354 (1900); Schweizer v. Mansfield, 14 Colo. App. 236, 59 P. 843 (1900); Antlers Park Regent Mining Co. v. Cunningham, 29 Colo. 284, 68 P. 226 (1902); Ontario-Colo. Gold Mining Co. v. MacKenzie, 19 Colo. App. 298, 74 P. 791 (1903); Clark Hdwe. Co. v. Centennial Tunnel Mining Co., 22 Colo. App. 174, 123 P. 322 (1912); Grimm v. Yates, 58 Colo. 268, 145 P. 696 (1914).

II. PERSONS ENTITLED TO LIEN.

Right to lien is given only to those who work or furnish material for the working, preservation, or development of the property, or who should do work or furnish materials upon any shaft, tunnel, incline, adit, drift, or draining of a mine, lode, or deposit. Lindemann v. Belden Consol. Mining & Milling Co., 16 Colo. App. 342, 65 P. 403 (1901); Chain O'Mines v. Lewison, 100 Colo. 186, 66 P.2d 802 (1937).

No mention is made of architects, engineers, or of any professional service at all as is the case in § 38-22-101; if, therefore, under its terms, anyone could acquire a lien for professional services, it must be clearly of that character of service which could be properly denominated work actually done for the working, preservation, or development of the property. Lindemann v. Belden Consol. Mining & Milling Co., 16 Colo. App. 342, 65 P. 403 (1901).

Professional mining expert and geologist not entitled to mechanic's lien on a mine for work done in exploring, examining, and considering a mine with reference to its mineral character and capacity to produce valuable and precious metals, and with reference to the quantity of ore in such mine and its value, and for making a report thereon, done under a contract with the owner. Lindemann v. Belden Consol. Mining & Milling Co., 16 Colo. App. 342, 65 P. 403 (1901).

Disbursing agent and accountant not entitled to lien. Rara Avis Gold & Silver Mining Co. v. Bouscher, 9 Colo. 385, 12 P. 433 (1886).

When general manager of mining company not entitled to lien for salary. Where the general manager of a mining company serving at a salary, under employment for a term of years, took an active part in the framing and issue of a series of bonds, secured by mortgage of the company's properties, he is not entitled to a lien for his salary, as against the bondholder. Int'l Trust Co. v. Lowe, 66 Colo. 131, 180 P. 579 (1919).

Those performing work for mine's development entitled to lien. Those, who under contract with the purchaser of a mining claim, perform work for its development, or for discharging the annual assessment required by an act of congress in case of an unpatented claim, are, under this section, entitled to a lien for the value of their labor. Pike v. Empfield, 21 Colo. App. 161, 120 P. 1054 (1912).

Mining engineer entitled to lien for professional service about mine. A mining engineer is entitled to a lien for surveys, superintendence, or other professional services about the mine under § 38-22-101. Int'l Trust Co. v. Lowe, 66 Colo. 131, 180 P. 579 (1919).

III. LABOR OR MATERIALS FURNISHED LESSEES.

No lien attaches to mine owner's interest for material furnished lessee. A mechanic's lien will not attach to the interest of the owner of a mine, for work done or material furnished a lessee in working or developing the mine, where the work is done or material furnished at the instance of, or under contract with, one whose only interest is that of lessee. Wilkins v. Abell, 26 Colo. 462, 58 P. 612 (1899); Williams v. Eldora-Enterprise Gold Mining Co., 35 Colo. 127, 83 P. 780 (1905); Milwaukee Gold Mining Co. v. Tomkins-Cristy Hdwe. Co., 26 Colo. App. 155, 141 P. 527 (1914); Empire Coal Co. v. Rosa, 26 Colo. App. 230, 142 P. 192 (1914).

Proof required to establish lien for lessees' miners. Miners who work for lessees may not have a lien on the property of the lessor simply because they were hired by the lessee and worked on the property, because there must be some showing to the point that the owner of the realty was in some manner obligated, either because he was a privy and party to the contract of employment or because in some other way than by the lease, he authorized the lessee to contract or because the agreement by its terms gave the lessee authority. Little Valeria Mining & Milling Co. v. Ingersoll, 14 Colo. App. 240, 59 P. 970 (1900); Empire Coal Co. v. Rosa, 26 Colo. App. 230, 142 P. 192 (1914).