Sutton v. Consolidated Apex Min. Co.

Citations

• 14 S.D. 33
• 84 N.W. 211
• 1900 S.D. LEXIS 5

Syllabus

<p>1. Where the manager and superintendent of a mining company, who was also a stockholder and director, and as such took part in procuring loans, secured by mortgages on the property, and expended the money received in and about the property, without informing the mortgagees that he claimed a miner’s lien on the property for his services, he is estopped from claiming that such lien is prior to the mortgages, since by failing to inform the mortgagees of his claim he represented to them and induced them to believe that he did not claim a lien therefor.</p> <p>2. The claim that an estoppel is not available to plaintiff, because not pleaded, cannot be sustained where the trial court found facts pertaining to an estoppel, since, the appeal being from the judgment alone, which only brings up the findings, and not the evidence, it will be presumed that the finding was made on proper evidence, that the evidence was properly admitted, and that the pleadings were amended to correspond with the facts proven.</p> <p>3. Laws 1895, Chap. 134, amending Comp. Laws, § 2039, declares that every person furnishing materials for timbering mine shafts, or for erecting hoisting machinery, or for car tracks, cars, etc., shall have a first lien on the mine or improvement for the amount thereof. Comp. Laws, § 5469, provides that every person furnishing materials, machinery or fixtures for any building, erection, or any improvement on land shall have a lien on the building and land therefor. Helé, that a claimant who furnished powder, fuse, steel, and tools to a mining company, to be used in tbe development and repair of the property, was not entitled to a lien therefor under either of the foregoing statutes, where it did not appear that such materials were used in the construction of some specific building, erection, or improvement, and the only finding with regard to the use of the material was that it was used in the development, repair and improvement of the property.</p>