Yasui v. Hallam

130 P. 638, 64 Or. 366, 1913 Ore. LEXIS 46

• Court: Oregon Supreme Court
• Decided: March 11, 1913
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

The statute creating the right of lien in cases of this kind reads as follows:

“Any person or persons who shall hereafter clear any land or improve the same by ditching or diking or tilling the same at the request of the owner or person in lawful possession of the same, shall have a lien upon the said lands so improved or cleared for his wages and charges for the said service which lien shall be preferred to every other lien, mortgage or incumbrance of a subsequent date.” Section 7439, L. O. L.

In construing the clauses of the contract relied upon herein, which terms were also involved in another case for the foreclosure of a lien upon the same land, Mr. Justice Burnett says: “The mere fact that a contractor goes upon the land for the purpose of performing services thereon for the owner does not give him possession. It is manifest that Hallam could not have maintained ejectment against Chapman and Sherrard to recover possession of any of the land described in the complaint. He stood in no better relation to the owners in fee than any employee or servant of theirs, and therefore is not a person in lawful possession of the land in that sense which would authorize him to contract with a stranger so as to charge the owners of the fee or affect their estate.”

The decision in that case is controlling herein, from which it follows that the decree should be reversed, and one entered here dismissing the suits, and it is so ordered.

Reversed: Suit Dismissed.