
    Dismissed for want of prosecution.
    Motion to reinstate allowed October 14, 1924.
    Submitted on brief of appellant.
    Affirmed November 24, 1925.
    M. D. JACKSON v. VICTOR W. BROWN et al.
    (241 Pac. 59.)
    Mines and Minerals—Complaint in Suit to Foreclose Miner’s Lien Held Good as Against Demurrer.
    1. In suit to foreclose miner’s lien, where from allegations in complaint it appeared work was done on group of claims belonging to same owner for benefit of all claims, and that defendant was in possession of all such mining property described in attached exhibit, and developed and operated same as one quartz mine, as the owner and entitled to the possession thereof, held complaint was not demurrable as against contention that some of locations were made after part of work was done.
    Mines and Minerals—Lien not Vitiated Because Plaintiff Included Nonlienable Property in Notice of Lien and Complaint, Where Done in Good Faith and Defendants not Injured or Misled.
    2. Where plaintiff is suing to foreclose lien, in good faith filed lien notice covering number of different mining locations as a group, under the theory that all of the locations constituted one mine, lien was not vitiated because it -included three locations which Circuit Court held nonlienable, since there was no pretense that defendants wore in any way injured or misled by incorporation of such property in lion notices or complaint.
    Mines and Minerals—Under Statute, Lien may be Granted on Group of Mining Claims or Locations if They are Worked as One Mine, Regardless of Whether or not They are Contiguous.
    3. Under Section 10219, Or. L., a lien may be claimed on a group of mining claims or locations if they are worked as one mine, regardless of whether or not they are contiguous.
    Appeal and Error — Where Plaintiff Did not Appeal from Decree Holding Certain of His Claims Nonlienable, Supreme Court Heed not Pass on Such Ruling.
    4. Where plaintiff did not appeal from decree of Ciccuit Court, which held certain of his claims to be nonlienable, Supreme Court need not pass on such ruling.
    Mines and Minerals—Miner has a Lien for Location Work.
    5. A miner has a lien for location work or prospecting, and the location work required by states under different statutes has same relation to mining as does representation work required by the federal law.
    Mines and Minerals—Plaintiff Could Claim Miner’s Lien Only for His Own Labor, and Could not Include Amount Paid for Locator’s Labor.
    6. In suit by plaintiff to foreclose miner’s lien, held that plaintiff could claim lien only for his own labor on the property, unless he was a general contractor, and could not include an amount paid by him for locator’s labor, for such amount, while it was lienable, was not lienable in the name of the plaintiff.
    Mines and Minerals—Plaintiff’s Overstatement of Amount for Which He is Entitled to Lien Held not to Vitiate Lien.
    7. Where plaintiff files miner’s lien, setting out number of days he labored, at certain price per day, but it appeared at trial that number of days’ labor claimed by plaintiff wore performed by another whom plaintiff had paid for his services as a locator, which amount was not lienable in plaintiff’s name, held, that such overstatement did not vitiate plaintiff’s lien, being made in good faith under the impression that he was entitled to recover therefor.
    Appeal and Error, 4 C. J., p. 692, n. 87.
    Mines and Mining, 27 Cyc., p. 770, n. 27, p. 771, n. 29, p. 774, n. 42, p. 776, n. 61 New, p. 777, n. 68 New, p. 780^ n. 92.
    Prom Jackson: P. M. Calkins, Judge.
    
      In Banc.
    This is an appeal from a decree foreclosing a miner’s lien. The complaint states two canses of suit, one of which is on an assigned lien. The plaintiff has not appeared in this court. Defendant Brown demurred to the complaint. The demurrer was overruled and said defendant filed an answer denying a number of the allegations in the complaint. The defendant Pittsburgh-Oregon Mining Company filed an answer denying four of the eight paragraphs constituting the complaint. The preparation and recordation of the notices of lien are admitted. The amount of the attorneys’ fees claimed by the plaintiff is admitted. The other defendants defaulted.
    Affirmed.
    For appellant there was a brief over the names of Mr. W. E. Crews and Mr. Frank DeSouza.
    
    For respondent there was no appearance.
   COSHOW, J.

Defendants and appellants, Brown and Pittsburgh-Oregon Mining Company, assign as error the overruling of the demurrer to plaintiff’s complaint. The demurrer was based on the ground that the complaint did not state sufficient facts. The notice of the lien covers eight different mining locations. The defendants claim that some of the locations were made after a part of the work was done; that one of the locations was a placer deposit detached from the other locations and that two other lode locations were also detached from the other five locations. It is alleged in the complaint:

“That all of said work and labor so performed was in and upon said property as set out in Exhibit ‘A’ hereof and whether performed- on one or all of said mining claims was for the benefit of all said claims which are contiguous to one another * * .”

Exhibit “A” referred to is a complete description of the eight locations constituting the mining claim or mine sought to be embraced in the lien. It appears, in as far as the demurrer is concerned, that the several claims described belonged to the same owner, and that the work done by the plaintiff was for the benefit of all the claims. It is also alleged in the complaint in this connection that the work was done upon said mirting claim or group of mining claims known as Golden Wedge Mine. The complaint also alleges that the defendant Brown was in possession of all of said mining property described in said exhibit “A,” and developed and operated the same as one quartz mine as the owner thereof and entitled to the possession thereof. The complaint does not give the date upon which the locations of the several claims were made, nor when the location notices were recorded except in one instance. In that instance the claim was located before any of the work was done. Consequently it does not appear from the complaint that any of the work was done prior to the location of any of the claims. The court properly overruled the demurrer.

The defendants and appellants contend that if one includes in a lien property that is not lienable, or upon which the claimant is not entitled to a lien, that such lien is invalid. The court made the following finding at the request of the appellants:

“The Court finds that while there are nine mining claims covered, described and set forth in Plaintiff’s lien sought to be foreclosed in this suit, that three of the said claims, to-wit: the Gold Wedge No. 1, the Hazy West Claim and the Placer Claim, are not lienable, and should therefore be eliminated from the Decree herein for the reason that the same are not adjoining or contiguous to the other claims set forth in Exhibit ‘A.’ ”

We believe that the fact that plaintiff claimed more land than he was entitled to does not vitiate his lien.

“A lien is not invalid because the certificate claims too much land, where it appears that the claimant did not intend to claim more land than he was entitled to, and, on discovering’ the error, filed an informal release of the land not covered by nor appurtenant to the building, and the owner has not been injured, nor have the rights of others been affected.” 2 Jones on Liens (2 ed.), 652, § 1423.

So far as the record discloses the plaintiff acted in good faith in filing his lien. His complaint alleges that the defendant Brown was operating and mining all of- said mining claims as locations as one quartz mine as the owner of and entitled to the possession thereof. The notice of lien alleges that the plaintiff performed certain work and labor as a miner upon that certain mine lying and being situated in Jackson County, Oregon, near Gold Hill, known as the Golden Wedge Mine, as more clearly appears from a definite and complete description of said property hereunto attached, made a part thereof and marked exhibit “A.” This is the same exhibit as referred and attached to the complaint and contains a description of all of said locations. The lien also states that the plaintiff claims a lien upon said mining property herein described as exhibit “A.” The theory of the plaintiff is that all of the locations constituted but one mine and the evidence supports this theory. The defendants introduced no evidence, but relied wholly on technical defenses. There is no pretense that the plaintiff and his assignor failed in any particular to perform the work they were employed to do by the defendant Brown. After plaintiff was employed the defendant Brown caused the defendant corporation, Pittsburgh-Oregon Mining Company, to be organized and the mining property described in exhibit “A” was conveyed to the corporation by the said Brown. There is not any pretense that either, of the appellants was in any way injured or misled by incorporating in the lien notices and complaint the description of the mining locations held by the Circuit Court to be nonlienable. Section 10219, Or. L., is authority for claiming a lien on a group of mining claims or locations. So much of that section as is pertinent reads as follows:

“When two or more mines, lodes, mining claims or deposits are owned or claimed by the same person or persons, and worked through a common shaft or tunnel, incline, adit, drift or other excavation, or over one tram, or at one mill or other reduction works, then all the mines, lodes, mining claims or deposits so worked, and all roads, tramways, trail, flumes, ditches or pipe lines, buildings, structure or superstructures used or owned in connection therewith, shall, for the purpose of this' a'ct, be deemed one mine; ’ ’

Under this statute it was not necessary for the different claims or locations to be contiguous in order to be subject to one lien. All that is required is that the claims should be owned by the same person or persons and be worked as one mine. It does not matter whether the work is done through a common shaft or tunnel, as any other excavation or common way of working any part of the mine for the benefit of the whole thereof entitles the laborer to a lien on the whole. It will be noticed that the lien is given upon a mine for a road which is necessary to the convenient working of the mine or the transportation of supplies thereto or products therefrom. We are not called on to pass upon the ruling of the Circuit Court eliminating the three locations from the decree because the plaintiff has not appealed. The liens of plaintiff were not vitiated, however, because they included those three locations.

It is insisted by the appellants that a part of the work done by plaintiff and his assignor was what the statute terms “location” work; that such work is not mining and does not therefore entitle a laborer to a lien upon the mine. A sufficient answer to this contention is found in Williams v. Toledo Coal Co., 25 Or. 426 (36 Pac. 159, 42 Am. St. Rep. 799), where the court, speaking through Mr. Justice Moore, says in page 431 of the official Report:

“Mining and prospecting are generic terms, which include the whole mode of obtaining metals and minerals, and the lien is given to every person who shall do work or furnish materials either in mining or prospecting. A lien is also given to all persons who shall do work upon or furnish materials for any shaft, etc., used for the purpose of draining or working any mine in which metals or minerals have been discovered, and to all persons who shall do work or furnish materials for any shaft, etc., designed for the purpose of working or draining any mine or place in which metals or minerals are supposed to exist, and such labor has been performed or materials furnished in prospecting for them.”

The location work required by the statute of different states has the same relation to mining as does representation work required by the federal laws.

The appellant also claimed that plaintiff’s account contained a lump charge in which a nonlienable item was mingled with a lienable item, and cites the opinion in Christman v. Salway et al., 103 Or. 672 (206 Pac. 541). At appellant’s request the Circuit Court made the following finding of fact:

“The court finds from the evidence that the bulk amount claimed by the Plaintiff to-wit: one hundred thirty-six (136) days at six ($6.00) dollars per day or eight hundred sixteen ($816.00) dollars is erroneous but that the Plaintiff should be allowed for one hundred eighteen (118) days at six ($6.00) dollars per day, or the sum of seven hundred eight ($708.00) dollars for the reason that the evidence shows that eighteen (18) days, or one hundred eight ($108.00) dollars of the amount claimed in said lien cannot be-considered as part of Plaintiff’s claim for the reason, as shown by the evidence, that this work was done by parties other than the Plaintiff, and is therefore not lienable under plaintiff’s claim.”

The claim of plaintiff is not for different items. He was working under a contract made directly with the owner of the property and his general agent at the agreed price of $6 per day. At the suggestion of the appellants he purchased a mining location from a third party and conveyed the same to the appellants for the price he paid for it. The transaction was for the benefit of the appellants. In addition to the price paid for the mining location, plaintiff paid the sum of $108 for work done by the locator upon the mining location so purchased and included that as work done by him. The court properly disallowed that much of plaintiff’s claim. There is no evidence at all of any bad faith upon the part of the plaintiff who honestly thought he was entitled to recover for the amount, he paid for the locator’s labor. The error is a technical one on the part of the plaintiff. No doubt the appellants should reimburse him for this outlay. But the plaintiff can claim a lien only for his own labor, unless he is a general contractor. For that reason the amount disallowed by the court was not lienable. No evidence is required to segregate that amount from plaintiff’s claim. The amount claimed was lienable, but not in the name of the plaintiff. The authorities cited by the appellants do not support their contention: Heisler v. Hamilton, 110 Or. 403 (223 Pac. 735); Christman v. Salway et al., 103 Or. 666, 672, 673 (205 Pac. 541). The plaintiff’s notice of lien sets out the number of days giving the dates plaintiff labored and the total amount which is ascertained by multiplying the total number of days worked by six. It developed on the trial that 18 days’ work claimed by the plaintiff was performed by another person who had been paid for his labor by the plaintiff. The plaintiff’s claim is simply an overstatement of the amount for which he is entitled to a lien. This does not vitiate his lien: 2 Jones on Liens (3 ed.), 642, § 1413, 644, § 1415; Bartels v. McCullough et al., 102 Or. 66 (201 Pac. 733). Malone v. Big Flat Gravel Co. et al., California case reported in 71 Cal. 578, (18 Pac. 772), is in some respects similar to the instant case. In the last case cited the complaint was held to be demurrable because the contract set out in the complaint varied materially from the contract set out in the notice of the lien. In so holding the court used this language: “We do not mean to say that a difference in the amount stated and the amounts proved would be fatal; and that it is possible that there may be other differences which would not be material.”

We find no error in the decree and it is affirmed.

Affirmed.  