such lands, buildings, or structures." While it may be said, and correctly so, that this language does not include a right or easement in real property as an appurtenance, yet we think that such an appurtenance is fairly included within the provisions of that section by which the land necessary to the use and enjoyment of the building is included within the lien claim. In case of an easement, consisting of a right of ingress and egress to and from a certain lot and building, and which was the only means of entrance to such lot and building, would it not be a very strict, if not a harsh, construction of section 1379, if it were construed to mean that nothing was included within the lien claim except the lot upon which the building stood and such other appurtenances, if any, as were located on the lot itself? And would it not be unreasonable to hold that while an easement or appurtenance would pass by a grant of the lot by deed without referring to the easement in terms or by designating it as an "appurtenance," yet it would not be included within a lien claim, nor pass upon a foreclosure sale of the lot and building as an appurtenance, unless it were specially described in the notice of intention to claim a lien? To require such a description is more than the statute requires. The statute requires only that a description sufficient to identify the property be 6 given. If therefore the principal thing (the building and lot whereon it stands) is described, all that belongs to either as an appurtenance is, in contemplation of law, described and passes with the principal thing. What we have said so far is based upon the theory advanced by counsel for appellants that the claim for the lien in question comes within section 1372, and hence must be entirely controlled by that and by section 1379. We are, however, dealing with a mechanic's lien on a mine and mining claim, and, in view of this fact, we think that the lien in question is controlled by section 1381, by which, in our judgment, a different rule is clearly. contemplated. It is true that section 1381, down to the 36 Utah-11 7 8 word "provided," creates a lien for work and material applied to the preservation or development of any lode, mine, or mining claim; but what is termed a "proviso" in that section is not really such. This so-called "proviso" does not restrict nor modify only what is said in section 1381, but it is intended to apply to the whole chapter. Of this there can be no doubt, as it is, in terms, made to apply to the provisions concerning mines and mining claims referred to in the entire chapter. This is made clear by reference to the original act (Laws 1894, p. 44, c. 41), where, instead of the noun "chapter," the word "act" is used. In the Revised Statutes of 1898 the noun "chapter" was thus substituted for the noun "act." For the purpose of arriving at the true intention of the Legislature, we think this proviso should be considered as a separate section. The mere fact that it is called a "proviso" and is appended to a particular section is not controlling, when its real purpose and effect is to be ascertained. (Marioncaux v. Cutler, 32 Utah 480, 481, 91 Pac. 355, and cases there cited.) We are of the opinion therefore that, for the purpose of acquiring mechanics' liens against mining claims when operated as a mine, the mining claims constituting the mine and all the property necessarily used and 9 connected with the mine and mining claims, in view 10 of the latter portion of section 1381, must be regarded as a unit, and that the lien attaches to the whole property necessarily used in connection with the mine and mining claims; and that, in such event, it is ordinarily sufficient to describe the mine as a whole or refer to the mining claims by name or number. When this is done, no one can ordinarily be misled, since, in a grant of the whole mine or mining claims by such a description, all which is an essential part thereof would pass either as an integral part of the mine or as a necessary appurtenant thereto. In this regard we can see no good reason for applying one rule to conveyances, and another to mechanics' liens; and it will be found that, unless the statutes make such a distinc tion, the courts generally make none. The authorities, for the purposes of mechanic's lien laws, consider the whole mine as a structure, and that the lien extends to the whole mine and all of its parts as though it were a single structure. That such must of necessity be the rule in order to preserve the rights and equities of all who may claim liens against the mine as well as of the owner thereof is clearly demonstrated by the Supreme Court of California in the following cases: Williams v. Mountaineer, etc., Co., 102 Cal. 134, 34 Pac. 102, 36 Pac. 388; Berentz v. Belmont Oil Min. Co., 148 Cal. 577, 84 Pac. 47, 113 Am. St. Rep. 308; Tredinnick v. Mining Co., 72 Cal. 78, 13 Pac. 152; Silvester v. Coe Quartz Min. Co., 80 Cal. 510, 22 Pac. 217. See, also, 2 Jones on Liens, sec. 1368. Taking the lien in question as an illustration, if any one had furnished material for the shafthouse and hoisting works and had filed a lien upon these structures alone, and this were permitted, the very entrance to the mine could be disconnected from the mine itself. The shafthouse and hoisting works would thus become useless without the mine, and it would be a useless thing without an entrance thereto. If a portion of the mine may thus be segregated, it may result in dismembering and in effect destroying almost the entire value of the mine as such. No one would contend that, if a mechanic had made repairs upon an expensive entrance to a hotel or other private structure such as the heating plant connected with such structure, he could claim a lien upon the entrance or heating plant alone, and in enforcing the lien could, by judicial process, sell the entrance or heating plant to one person while the main structure belonged to another, and in this way practically destroy the use of the entire structure until the owner, or some purchaser of the main structure, yielded to the terms of the purchaser of the entrance or heating plant. The doctrine which, for the purpose of mechanics' liens, treats mines and mining claims that are being actively operated and worked as a unit the same as other structures, is so manifestly just and equitable, and so well responds to the general utility involved, that it seems like a work of supererogation to present any arguments or reasons why it should prevail. It has, however, been held that for improvements made on a mill site no lien can ordinarily be acquired against a mine or mining claim. (Colorado Iron Works v. Taylor, 12 Colo. App. 451, 55 Pac. 942.) This ruling is based upon the ground that neither the mill nor mill site is necessarily a part of the mine. While it is alleged in the complaint in the case at bar that the lien was obtained for the erection of a mill, yet nothing is made to appear what kind of a mill it was, except that it was erected on the mining claims. Under the authorities cited, supra, the mill thus became a part of the mining claims, and hence the rule announced in the Colorado case does not apply; but the validity of the lien as a whole is not questioned, and is therefore not involved. Nor do we wish to be understood as intimating that the lien as a whole was defective. Upon that question we express no opinion. In view of the foregoing, we with some hesitation, have arrived at the conclusion that, under the allegations of the complaint, when considered together, the two parcels of ground, with appurtenances thereon, were essential to the working of the mine and mining claims described in the decree of foreclosure and order of sale; that all of them, taken together, constituted an appurtenance to the mining claims described in the decree, and passed to the purchaser at the foreclosure sale without specially describing or referring to either the parcels of ground or to the shafthouse, or hoisting works, or the other fixtures, and hence respondent H. A. McCornick, as the grantee of the purchaser at such sale, is the owner thereof. We desire to add that we have no inclination to either relax or depart from the wholesome rule that ordinarily nothing is covered by a mechanic's lien except the property which is therein specifically referred to in terms or described in the notice of intention to claim a lien, and that such a description includes only such things as are necessarily used and connected with the property so described or referred to. Further, that the court, in 11 the decree and order of sale, should, with some particularity, limit and define the property to which the lien is held to attach and which is ordered to be sold; that is, that the property should be described with such certainty as is ordinarily required in an execution or deed of convey ance. We are of the opinion that, in view of the conceded facts, the lien in question fairly responded to the foregoing rule. The court therefore did not err in sustaining the demurrer, and the judgment is, accordingly, affirmed. Costs to respondents. STRAUP, C. J., and MCCARTY, J., concur. BOUCOFSKI et al. v. JACOBSEN et al. No. 1940. Decided June 12, 1909 (104 Pac. 117.) 1. APPEAL AND ERROR-TIME ΤΟ APPEAL COMPUTATION-RETROACTIVE OPERATION OF STATUTES. The general rule that a judgment may not be affected by a statute passed after its entry does not apply to statutes affecting procedure or practice, so that Rev. St. 1898, section 3168, as amended by Laws 1907, p. 228, c. 150, effective March 25, 1907, authorizing additional findings and conclusions of law after entry of judgment, would apply to a judgment originally entered on March 16th, so as to make the time for appealing from the judgment run from September 21st, when the additional findings were made; the action being still pending when the amendment became effective, by virtue of section 3490, providing that an action is deemed pending from its commencement until its final determination upon appeal, or until time for appeal has passed. (Page 171.) 2. APPEAL AND ERROR-RIGHT OF APPEAL-NATURE OF RIGHT, The right to appeal is a constitutional and valuable right, and should not be denied, unless it clearly does not exist or has been lost or abandoned. (Page 172.) |