Republic Bank & Trust Co. of Tulsa v. Bohmar Minerals, Inc.

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Republic Bank & Trust Co. of Tulsa v. Bohmar Minerals, Inc.
1983 OK 29
661 P.2d 521
Case Number: 56321
Decided: 03/22/1983
Modified: 03/24/1983
Supreme Court of Oklahoma


Appeal from the District Court, Rogers County, Byron Ed Williams, J.

On Certiorari to the Court of Appeals, Temporary Division 134.

¶0 Bank sought to foreclose a mortgage and to establish its priority over other lien claims against the land. The District Court, Rogers County, Byron Ed Williams, Judge, summarily adjudged the Bank's prior recorded mortgage superior to the lien claimed for "labor and services". The Court of Appeals reversed, holding the Bank's mortgage inferior because the other lien took precedence as a "laborer's lien". Certiorari was granted on Bank's petition.

The Court of Appeals Opinion is Vacated and the Trial Court's Judgment is Affirmed.

Jack E. Gordon, Gary Barnett, Gordon & Gordon, Claremore, for appellant, Dale Miles.

Stephen A. Schuller, Thomas M. Klenda, Prichard, Norman & Wohlgemuth, Tulsa, for appellee.

OPALA, Justice:

[661 P.2d 522]

¶1 The dispositive issue on certiorari is whether a bulldozer operator who cleared the premises for construction work may claim a laborer's lien pursuant to 42 O.S. 1981 § 92 . We hold that the operator's work did not entitle him to the statutory status of a "laborer" with a lien superior to a prior recorded mortgage.

¶2 The appellee, Republic Bank & Trust Company of Tulsa [Bank], holds a mortgage upon a tract of land in Rogers County owned by a corporation [Bohmar]. Its mortgage was recorded January 7, 1979.

¶3 Miles had a contract with Bohmar to clear the mortgaged premises for a construction site. He personally performed the task with the use of his bulldozer. His work began early in February, 1979 and was completed in the latter part of July of that year. In September, 1979 Miles secured a judgment against Bohmar for the contract price of the "labor and services" he rendered on the land in question and later recorded it to secure a judgment lien.

[661 P.2d 523]

¶4 In January, 1980 Miles brought a counter-claim against the Bank in the foreclosure suit.

¶5 A laborer's lien is in derogation of the common law. It owes its existence solely to a positive legislative enactment.

¶6 Under §§ 92 and 96, a preferential lien is given to laborers upon the product of their labor.

¶7 As used in § 92, the term "laborer" has a restricted meaning. It refers to "a class of persons rarely able to protect themselves, and who, from the laborious nature of their occupations and the necessity of earning their daily bread by daily toil, have not the time, opportunity, or training sufficient to inform themselves as to the financial responsibility of the parties for whom they work. It is such persons who work under a contract terminable at will who are in danger of being discharged without receiving their compensation, and who need this unusual and strong means of enforcing their rights."

¶8 In the instant case Miles contracted with Bohmar to furnish his bulldozer and to perform the work at a per-acre rate. In [661 P.2d 524] legal effect the Miles/Bohmar agreement was not for labor alone. It called for the rental or furnishing of equipment with an operator. The entire project took six months to complete. While Miles "personally" cleared the land, he himself provided the heavy power equipment for the job and worked without supervision under circumstances more indicative of self-employment than a laborer's status. Miles was free to exercise his independent skill and knowledge in carrying to completion the project he contracted to do. As an independent contractor furnishing both personal labor and heavy equipment for the job contracted to be done, Miles does not fall into the class of persons intended to be protected by § 92.

¶9 Miles places some reliance on Home Building and Loan Ass'n v. White

¶10 There is no conflict between our conclusion here and the pronouncement in White where we said that both skilled and unskilled labor is lienable under § 92. Miles' contribution does not represent solely the product of skilled labor through muscular exertion. While Miles performed all the services himself and not through, or with the aid of, other persons, the end product of his efforts - the clearing of the land - was accomplished not by muscular exertion alone but rather by self-provided heavy power equipment under the guiding hand of human agency. The record leaves no doubt but that in the composition of forces - human and mechanical - which by his agreement with Bohmar Miles was called upon to deploy for the land grading project, machine power clearly represented a factor that was vastly preponderant over the muscular exertion content of the total effort required to complete the job. Since far more than mere labor went into the "service" he rendered, he does not qualify for a laborer's status, although the work he did may in fact qualify as an "improvement" upon the land on which the lien is sought to be imposed.

¶11 We are not concerned here with whether the work in clearing the land was lienable as an improvement - an issue decided in Green v. Reese

¶12 Public policy requires that senior encumbrances be afforded protection against all subsequent liens except those which legitimately fall within the narrow § 92 class.

[661 P.2d 525]

¶13 The opinion of the Court of Appeals is vacated and the trial court's judgment is affirmed.

¶14 SIMMS, V.C.J., and IRWIN, DOOLIN and WILSON, JJ., concur.

¶15 BARNES, C.J., and HODGES and HARGRAVE, JJ., dissent.


1 Laborer's lien laws - 42 O.S. 1981 §§ 92 et seq. - stand virtually unchanged since their original enactment. Laws 1910-11, c. 114, p. 254.

The terms of § 92 provide: "Laborers who perform work and labor for any person under a verbal or written contract, if unpaid for the same, shall have a lien on the production of their labor, for such work and labor; Provided, that such lien shall attach only while the title to the property remains in the original owner." The terms of § 96 provide: "Liens created under this act shall take precedence over all other liens whether created prior or subsequent to the laborer's lien herein created and provided." [Emphasis added].

2 Bohmar purchased 36 acres of land in lots. It hired Miles to clear them all. The present case only deals with approximately 16 acres.

3 The two other defendants both filed disclaimers.

4 The counter-claim filed by Miles in the foreclosure suit was brought within the maximum period of 8 months prescribed by § 92 for the commencement of an action to impress a laborer's lien.

5 The trial court interpreted the judgment lien as having here the same force as a mechanic's lien but not as a laborer's lien. It was noted in the record that Miles had previously sought to impress a mechanic's lien for the other lots he had cleared under contract with Bohmar, but such lots are not involved in the suit before us.

6 American Tank and Equipment Co. v. T.E. Wiggins, 170 Okl. 504, 42 P.2d 115, 117 [1934]. See also Stanolind Crude Oil Purchasing Co. v. Busey, 185 Okl. 200, 90 P.2d 876, 879 [1939] and Riffe Petroleum Co. v. Great National Corp., Inc., Okl., 614 P.2d 576, 579 [1980].

7 Riffe Petroleum Co. v. Great National Corp., Inc., supra note 6 at 579.

8 American Tank and Equipment Co. v. T.E. Wiggins, supra note 6 at 117.

9 American Tank and Equipment Co. v. T.E. Wiggins, supra note 6 at 117. In Harriss v. Parks, 77 Okl. 197, 187 P. 470, 471 [1920], the court noted that "[s]tatutory liens . . . have been looked upon with jealousy, and generally will only be extended to cases expressly provided for by the statute, and then only where there has been a strict compliance with all the statutory requisites essential to their creation and existence"; Riffe, supra note 6.

10 Landers v. Bank of Commerce of Okmulgee, 106 Okl. 59, 233 P. 200, 203 [1925].

11 Shefts Supply, Inc. v. Brady, 170 Okl. 590, 41 P.2d 820, 822 [1935].

12 Morley v. McCaskey, 134 Okl. 50, 270 P. 1107, 1110 [1928].

13 Morley v. McCaskey, supra note 12 at 1110.

14 An independent contractor is one who is engaged to perform a job according to his own methods, exercising independent judgment without any control of his employer except as to the result of the work to be done. Morley v. McCaskey, supra note 12 at 1109.

15 Shefts Supply Inc. v. Brady, supra note 11 at 822-823; Local Federal Savings and Loan Ass'n v. Davidson & Case Lumber Co., 208 Okl. 155, 255 P.2d 248, 253 [1953].

We need not decide here - and leave unsettled by this opinion - whether laborer's status may be accorded to one who made improvements upon land working by himself with the aid of power tools such as an electric saw or drill, a pneumatic hammer or some like appliance.

16 141 Okl. 240, 284 P. 889 [1930].

17 Okl., 261 P.2d 596 [1953].

18 Basham v. Goodholm & Sparrow Inv. Co., 52 Okl. 536, 152 P. 416 [1915].

19 Martin Coal & Coke Co. v. Brewer, 185 Okl. 169, 90 P.2d 653, 655 [1939].

Our approach here does not conflict with the provisions of 12 O.S. 1981 § 2 and 25 A>O.S. 1981 § 29 which require statutes in derogation of the common law to be liberally construed. Valuable common-law rights cannot be held abrogated by statutes whose text neither expressly nor implicitly affects them. The rule of liberal construction is not intended as a device for extending the scope of enactments. Rather, its sole purpose is favorably to construe legislation with a view to effectuating the lawmakers' objective. Loose construction should not be applied in the process of determining legislative intent. The court should initially determine what the legislature intended to accomplish and then apply liberal construction to give full effect to the purpose that can be divined. In re Captain's Estate, 191 Okl. 463, 130 P.2d 1002, 1004 [1942]; Roxana Petroleum Co. v. Cope, 132 Okl. 152, 269 P. 1084, 1086 [1928].