2023 New Mexico Statutes › Chapter 48 - Liens and Mortgages › Article 2 - Mechanics' and Materialmen's Liens › Section 48-2-2 - Mechanics and materialmen; lien; labor, equipment and materials furnished; definition of agent of owner.

Every person performing labor upon, providing or hauling equipment, tools or machinery for or furnishing materials to be used in the construction, alteration or repair of any mine, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, road or aqueduct to create hydraulic power or any other structure, who performs labor in any mine or is a registered surveyor or who surveys real property has a lien upon the same for the work or labor done, for the specific contract or agreed upon charge for the surveying or equipment, tools or machinery hauled or provided or materials furnished by each respectively, whether done, provided, hauled or furnished at the instance of the owner of the building or other improvement or his agent. Every contractor, subcontractor, architect, builder or other person having charge of any mining or of the construction, alteration or repair, either in whole or in part, of any building or other improvement shall be held to be the agent of the owner for the purposes of this section.
History:
Laws 1880, ch. 16, § 2; C.L. 1884, § 1520; C.L. 1897, § 2217; Code 1915, § 3319; C.S. 1929, § 82-202; 1941 Comp., § 63-202; 1953 Comp., § 61-2-2; Laws 1965, ch. 184, § 1; 1991, ch. 43, § 1; 1993, ch. 252, § 1.
ANNOTATIONS
Cross references.
— For unlicensed contractor not entitled to lien,
see
60-13-30 NMSA 1978.
The 1993 amendment,
effective June 18, 1993, substituted "mine" for both occurrences of "mining claim" and made a minor stylistic change.
The 1991 amendment,
effective April 1, 1991, inserted "or is a registered surveyor or who surveys real property" and "surveying or" near the middle of the section and made a minor stylistic change.
I. GENERAL CONSIDERATION.
Notice.
— Sections 48-2-2, 48-2-2.1, 48-2-5 NMSA 1978 indicate that timing and actual or constructive notice not a general public policy favoring materialmen are the principal considerations in determining priority between suppliers and other creditors, at least in the context of private construction projects.
Hasse Contracting Co., Inc. v. KBK Fin., Inc.
, 1999-NMSC-023, 127 N.M. 316, 980 P.2d 641.
Liens not due process violation.
— The fact that the statute allowed liens to be asserted in excess of the contract price of the building or improvement was not a restraint upon the liberty of contract or a taking of property without due process of law.
Baldridge v. Morgan
, 1910-NMSC-003, 15 N.M. 249, 106 P. 342.
The lien given by this section was founded upon the doing of the work or the furnishing of the material.
Weggs v. Kreugel
, 1922-NMSC-021, 28 N.M. 24, 205 P. 730.
Purpose of cumulative effect not to nullify other statutes.
— The purposes of the declaration of cumulative effect was not to make other statutory provisions applicable to those things covered by the Oil Act itself, but to show that the things for which liens were given by this act were not intended to nullify other lien statutes in favor of mechanics, laborers, clerks and others performing services in the oil industry, and materialmen who might furnish material in the oil or mining industry not covered by the act.
Butt v. Vermejo Park Corp.
, 1976-NMSC-075, 89 N.M. 679, 556 P.2d 835.
Similar provisions for benefit of suppliers for government construction project.
— Sections 13-4-18 and 13-4-19 NMSA 1978 are intended to provide a remedy comparable to a mechanic's lien to materialmen who provide supplies for a state government construction project.
State ex rel. W.M. Carroll & Co. v. K.L. House Constr. Co.
, 1982-NMSC-150, 99 N.M. 186, 656 P.2d 236.
Relation back of subcontractor's lien.
— A subcontractor's lien relates back to the date when any construction actually commenced, even though that subcontractor's work commenced after the mortgage was recorded.
First Interstate Bank v. Hutchens
, 1991-NMSC-086, 112 N.M. 497, 816 P.2d 1119.
Where a miner mining gypsum and two other providers of labor (not "subcontractors" on a construction project) subsequently performed services unrelated to the mining enterprise, the claims of the later workers did not relate back to the date when the miner began his labor.
First Interstate Bank v. Hutchens
, 1991-NMSC-086, 112 N.M. 497, 816 P.2d 1119.
Third-tier material suppliers in government construction projects are protected under "Little Miller Act,"
Sections 13-4-18 to 13-4-20 NMSA 1978 (bonds of public contractors).
Nichols Corp. v. Bill Stuckman Constr., Inc.
, 1986-NMSC-077, 105 N.M. 37, 728 P.2d 447.
Identification of land in claim.
— Where lien form claim listed mechanics' claim as against lot upon which minor portion of building was located but statement of charges for work completed correctly described address of building and owners admitted in answer that building was located at the named address, statute requiring that land identified in lien claim be land upon which improvements were made was complied with.
Boone v. Smith
, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Effect of invalid lien.
— The mere filing of a materialman's lien did not give defendant the right to foreclose the lien, where the lien was invalid from its inception because it was filed after defendant knew that the swimming pool heater he had furnished was not actually used, and it was not a part of the swimming pool.
Branch v. Mays
, 1976-NMCA-086, 89 N.M. 536, 554 P.2d 1297.
Entitlement to lien.
— It was not necessary that the owner be indebted to the contractor to entitle the subcontractor, materialman or laborer to mechanic's lien.
Hobbs v. Spiegelberg
, 1885-NMSC-014, 3 N.M. (Gild.) 357, 5 P. 529.
Creation of lien.
— Contractor, simply by performing labor in a mine, did not have a mechanic's lien made under this section.
First Interstate Bank v. Hutchens
, 1991-NMSC-086, 112 N.M. 497, 816 P.2d 1119.
Abandonment as affecting lien.
— Where a hole drilled for a water well was dry, and was abandoned, the fact of abandonment, if through no fault of driller, did not affect the driller's right to mechanic's lien.
Dysart v. Youngblood
, 1940-NMSC-032, 44 N.M. 351, 102 P.2d 664.
Nonresponsibility notice ineffective.
— Owner of land who, himself, orders or contracts for an improvement to be erected thereon cannot escape responsibility for the materials purchased for use in the improvement, and the posting of notice of nonresponsibility under Section 48-2-11 NMSA 1978 in such a case amounts to nothing.
Skidmore v. Eby
, 1953-NMSC-098, 57 N.M. 669, 262 P.2d 370.
No quantum meruit enforcement.
— Materialmen's lien filed on theory of express contract was extinguished when claimant failed to establish his claim on express contract, and could not be enforced in a subsequent action in quantum meruit.
Terry v. Pipkin
, 1959-NMSC-049, 66 N.M. 4, 340 P.2d 840.
Oil Act lien where express contract.
— Under the Mechanics' Act, a lien may be imposed upon the fee owner's interest if he has knowledge of the construction and fails to disclaim responsibility therefor in the manner and within the time therein provided while under the Oil Act (Section 70-4-1 NMSA 1978 et seq.), the fee owner's interest is subject to a lien only if he expressly so contracts. This is an obvious conflict, and it was held that a company which built roads, leveled land, hauled water and provided gravel and load pipe in connection with certain oil and gas exploration and drilling was only entitled to assert a lien under the Oil Act.
Butt v. Vermejo Park Corp.
, 1976-NMSC-075, 89 N.M. 679, 556 P.2d 835.
Realty liens rare.
— Generally, mechanic's lien statutes do not allow a lien against the realty for material or labor entering into the construction of trade fixtures or chattels, fixtures or improvements which a tenant will be permitted to remove at the expiration of his term.
Porter Lumber Co. v. Wade
, 1934-NMSC-042, 38 N.M. 333, 32 P.2d 819.
California decisions followed.
— This section was taken from California and the New Mexico supreme court has consistently followed the California decisions in construing the lien statute.
Tabet v. Davenport
, 1953-NMSC-076, 57 N.M. 540, 260 P.2d 722.
II. CONSTRUCTION OF STATUTE.
A. LIBERAL CONSTRUCTION.
Liberal construction.
— The Mechanic's Lien Law, being remedial in its nature, and equitable in its enforcement, should be liberally construed.
Lyons v. Howard
, 1911-NMSC-039, 16 N.M. 327, 117 P. 842;
Finane v. Las Vegas Hotel & Improvement Co.
, 1885-NMSC-023, 3 N.M. (Gild.) 411, 5 P. 725,
overruled by
Ford v. Springer Land Ass'n
, 1895-NMSC-011, 8 N.M. 37, 41 P. 541,
aff'd
, 168 U.S. 513, 18 S. Ct. 170, 42 L. Ed. 562 (1897);
Genest v. Las Vegas Masonic Bldg. Ass'n
, 1902-NMSC-003, 11 N.M. 251, 67 P. 743;
Houston Hart Lumber Co. v. Neal
, 1911-NMSC-024, 16 N.M. 197, 113 P. 621;
Hot Springs Plumbing & Heating Co. v. Wallace
, 1933-NMSC-092, 38 N.M. 3, 27 P.2d 984.
Doctrine of liberal construction was invoked to bring within term "structure" plaintiffs' dry water well and labor and materials used in drilling it.
Dysart v. Youngblood
, 1940-NMSC-032, 44 N.M. 351, 102 P.2d 664.
While the mechanic's lien statute would be liberally construed, the court would not go beyond the rights claimed.
Texas, S.F. & N.R.R. v. Orman
, 1886-NMSC-020, 3 N.M. (Gild.) 652, 9 P. 595 (1886).
B. DEFINITION OF TERMS.
Definitions of terms.
— Materials to be used in the construction means materials actually used in the construction, and did not cover a swimming pool heater which was not actually used in, and did not become a part of, a swimming pool.
Branch v. Mays
, 1976-NMCA-086, 89 N.M. 536, 554 P.2d 1297.
Definitions.
— The words "construction," "alteration" and "repair" have different signification.
Board of Comm'rs v. State
, 1939-NMSC-031, 43 N.M. 409, 94 P.2d 515.
"Mining claim" meant portion of public mineral lands to which qualified persons could obtain rights of occupancy and possession by certain prescribed methods.
Gray v. N.M. Pumice Stone Co.
, 1910-NMSC-036, 15 N.M. 478, 110 P. 603.
"Owner" referred to the person causing the building to be constructed.
Albuquerque Lumber Co. v. Montevista Co.
, 1934-NMSC-086, 39 N.M. 6, 38 P.2d 77;
Albuquerque Lumber Co. v. Tomei
, 1926-NMSC-033, 32 N.M. 5, 250 P. 21.
The agent, in case of a mine, was any person having charge of the mine, with power to employ laborers, and such employment subjected their claims to the lien provided by the statute.
Post v. Fleming
, 1900-NMSC-033, 10 N.M. 476, 62 P. 1087.
To qualify as a subcontractor, the party must perform some portion of the work for which the owner originally contracted. It is not necessary that the work be done at the construction site, but work must be performed to the contract's plans and specifications, and the work performed must be substantial.
Vulcraft v. Midtown Bus. Park, Ltd.
, 1990-NMSC-095, 110 N.M. 761, 800 P.2d 195.
III. APPLICATION OF STATUTES.
A. SERVICES INCLUDED.
Claimant's labor included.
— Work performed by lien claimant in lime quarry as a laborer, working as a sort of foreman with other laborers, and directing them in their work, working at the lime kiln, gathering up tools, closing lime bins and caring for teams of horses, was work within the terms of the lien statute.
Gray v. N.M. Pumice Stone Co.
, 1910-NMSC-036, 15 N.M. 478, 110 P. 603.
Architect's plans entitled to lien.
— An architect who, under contract with the owner, prepares and furnishes plans for a building which is actually constructed in accordance therewith, is entitled to a lien for his services, even though he does not supervise the construction of such building.
Gaastra, Gladding & Johnson v. Bishop's Lodge Co.
, 1931-NMSC-021, 35 N.M. 396, 299 P. 347.
Under statute providing liens for "every person performing labor," superintending architect had right to lien not only for his services in superintending work, but also for his plans and specifications in accordance with which building was erected.
Johnson v. McClure
, 1900-NMSC-036, 10 N.M. 506, 62 P. 983.
B. USE AND FURNISHING OF MATERIALS.
Furnishing use of materials sufficient.
— The furnishing of materials to be used in the construction and the putting of them into the building entitled the subcontractor to the lien upon the premises to the extent of the value of such materials, for the statute was general and did not restrict the right of lien to cases when materials were sold and delivered in this territory.
Stearns-Roger Mfg. Co. v. Aztec Gold Mining & Milling Co.
, 1908-NMSC-001, 14 N.M. 300, 93 P. 706;
Genest v. Las Vegas Masonic Bldg. Ass'n
, 1902-NMSC-003, 11 N.M. 251, 67 P. 743.
Use, consumption of materials required.
— This statute has been construed to require both allegation and proof that the materials "furnished . . . to be used in construction" were sold to be used on the land against which the lien is claimed and that the materials were used there and became part of the structure.
Panhandle Pipe & Steel, Inc. v. Jesko
, 1969-NMSC-098, 80 N.M. 457, 457 P.2d 705.
Ordinarily, unless expressly so provided by statute, no lien may be acquired for the value or use of tools, machinery, equipment or appliances furnished or lent for the purposes of facilitating the work, where they remain the property of the contractor and are not consumed in their use, but remain capable of use in other construction or improvement work.
Lembke Constr. Co. v. J.D. Coggins Co.
, 1963-NMSC-109, 72 N.M. 259, 382 P.2d 983.
One who asserts a lien for materials must not only allege and prove that he sold the materials for use in the particular building, but that they were actually used therein.
Tabet v. Davenport
, 1953-NMSC-076, 57 N.M. 540, 260 P.2d 722.
Lien as to consumed, worthless materials.
— Generally a lien may be acquired for materials which, although not incorporated in the building or improvement, are used in the construction and, by their use, are actually or practically consumed, wasted, destroyed or rendered worthless or unfit for further use.
Lembke Constr. Co. v. J.D. Coggins Co.
, 1963-NMSC-109, 72 N.M. 259, 382 P.2d 983.
Furnishing materials required.
— The statute provides a lien for "furnishing materials to be used in the construction" of houses; there being a failure of proof plaintiff furnished such materials, the judgment correctly dismissed the lien against defendant's property.
Blueher Lumber Co. v. Springer
, 1967-NMSC-034, 77 N.M. 449, 423 P.2d 878.
Where there was a failure of proof that the materials itemized on invoices were furnished for use in defendant's house, plaintiff was not entitled to lien against those materials.
Blueher Lumber Co. v. Springer
, 1967-NMSC-034, 77 N.M. 449, 423 P.2d 878.
Furnishing materials required.
— Mechanic's lien did not have priority over a mortgage where, although an architect had performed work prior to the recording of the mortgage, no physical work had commenced upon the site nor had any materials been delivered thereto.
Sec. Fed. Sav. & Loan Ass'n v. Commercial Invs., Ltd.
, 92 Bankr. 488 (Bankr. D.N.M. 1988).
C. PROPERTY SUBJECT TO LIEN.
Test as to "improvements," "fixtures".
— While this section uses the word "improvements" rather than the word "fixtures," it is recognized that the test for determining whether a given article is subject to a lien under the section is whether it is a fixture or a permanent part of the building.
Boone v. Smith
, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Supreme court has long recognized three guidelines in determining whether an article used in connection with realty is to be considered a fixture, which are: (1) annexation, (2) adaptation and (3) intention.
Boone v. Smith
, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Where articles are securely attached to building and are used for the purpose for which they were installed, these articles annexed to the building with the owner's knowledge became a part of the building itself.
Boone v. Smith
, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
In determining whether articles are fixtures, intent is the chief test and must affirmatively and plainly appear.
Boone v. Smith
, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Where building required installation of electric wiring and heating to be usable and lease provided that improvements made by lessee with consent of lessor would merge and become part of realty, improvements were intended to be fixtures and subject to mechanics' liens.
Boone v. Smith
, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
Where by express terms of a lease it is provided that improvements shall not become fixtures, and where the nature of the article is such that it is not to be permanently attached to the land, it probably remains personalty and not subject to a mechanic's lien.
Boone v. Smith
, 1968-NMSC-172, 79 N.M. 614, 447 P.2d 23.
No lien on personalty not permanently affixed.
— Movable drilling outfit, not designed or intended to be permanently affixed to the land, was not the subject of a mechanic's lien. Albuquerque Foundry & Mach.
Works v. Stone
, 1930-NMSC-017, 34 N.M. 540, 286 P. 157.
Furnishing and repairing fishing tools and appliances for oil wells, not designed for permanent annexation to the realty, did not give rise to mechanic's lien.
Albuquerque Foundry & Mach. Works v. Stone
, 1930-NMSC-017, 34 N.M. 540, 286 P. 157.
Machinery repairs.
— To authorize a mechanic's lien for the repair of machinery, such repairs had to be in the nature of fixtures, and not small parts of a machine which were constantly wearing out and having to be replaced.
Ripley v. Cochiti Gold Mining Co.
, 1904-NMSC-013, 12 N.M. 186, 76 P. 285.
Lien attachable upon unimproved, abandoned property.
— A mechanic's or materialman's lien can attach to property even if no improvement occurred due to the owner's abandonment of the project through no fault of the claimant.
Cubit Corp. v. Hausler
, 1992-NMSC-050, 114 N.M. 602, 845 P.2d 125.
Extent of property subject to lien.
— A person who was entitled to a mechanic's lien by reason of material furnished or work done was entitled to a lien on the whole of the building constructed or improved together with so much of the lot or lots on which the building so constructed or improved stands, as might have been necessary for the full use and enjoyment of the property.
Mountain Elec. Co. v. Miles
, 1899-NMSC-002, 9 N.M. 512, 56 P. 284.
Lessees' improvements not included.
— Mere fact that bowling alleys, constructed by lessees on leased premises, were necessary to enable the lessees to carry on their business was not sufficient to subject the lessor's property to lien for materials used in the construction of the bowling alleys.
Porter Lumber Co. v. Wade
, 1934-NMSC-042, 38 N.M. 333, 32 P.2d 819.
Rent not lienable item.
— Rent for equipment used in doing the excavation and construction work is not a lienable item under the mechanics' and materialmen's statutes of New Mexico.
Lembke Constr. Co. v. J.D. Coggins Co.
, 1963-NMSC-109, 72 N.M. 259, 382 P.2d 983.
Workers' compensation premiums not lienable.
— Workers' compensation premiums are not lienable under this section because they are neither labor, equipment, nor materials.
CIT Group/Equip. Fin., Inc. v. Horizon Potash Corp.
, 1994-NMCA-116, 118 N.M. 665, 884 P.2d 821.
A ditch and reservoir system were covered by this section.
Ford v. Springer Land Ass'n
, 1895-NMSC-011, 8 N.M. 37, 41 P. 541,
aff'd
, 168 U.S. 513, 18 S. Ct. 170, 42 L. Ed. 562 (1897).
An oil well is a "structure" subject to a laborer's lien.
Albuquerque Foundry & Mach. Works v. Stone
, 1930-NMSC-017, 34 N.M. 540, 286 P. 157.
Fishing for lost tools in oil well was work done in "repair" of a "structure."
Albuquerque Foundry & Mach. Works v. Stone
, 1930-NMSC-017, 34 N.M. 540, 286 P. 157.
D. PARTIES.
1. SUBJECT TO LIEN.
Application of "agent."
— Every contractor is held to be the agent of the owner for purposes of this statute.
Romero v. Coleman
, 1902-NMSC-029, 11 N.M. 533, 70 P. 559.
Vendee, under executory contract reserving legal title in vendor, though "builder" of improvements thereon, was not agent of vendor.
Albuquerque Lumber Co. v. Tomei
, 1926-NMSC-033, 32 N.M. 5, 250 P. 21.
Lessee of mining claim was not lessor's agent in employing laborers, so as to subject his interest to lien, and lessor was not liable unless, with knowledge, he failed to disclaim liability.
Mitchell v. McCutcheon
, 1927-NMSC-061, 33 N.M. 78, 260 P. 1086.
A lease of improved property for three years, by the terms of which the lessee was to make certain repairs to the building in consideration of rent free for a year, did not constitute the lessee the agent of the lessor, so as to bind the lessor upon a mechanic's lien for materials furnished.
Rio Grande Lumber & Fuel Co. v. Buergo
, 1937-NMSC-078, 41 N.M. 624, 73 P.2d 312.
2. ASSERTING LIEN.
No manufacturer's claim.
— Manufacturer that invoiced contractor's supplier could not assert a claim for a manufacturer's lien against premises upon which materials were used.
Ronald A. Coco, Inc. v. St. Paul's Methodist Church
, 1967-NMSC-138, 78 N.M. 97, 428 P.2d 636.
Agent-superintendent not covered.
— The general agent and superintendent of a mine, who attended to all the business, directed its conduct, and was the representative of the company with absolute and plenary power to employ and discharge laborers, was not within the beneficence of this statute, enacted for the security of a class not otherwise able to protect themselves.
Boyle v. Mountain Key Mining Co.
, 1897-NMSC-024, 9 N.M. 237, 50 P. 347.
Materialman furnishing supplies to middleman.
— This section authorizes a materialman furnishing supplies to a middleman that contracted with a general contractor to provide specially fabricated material in accordance with project specifications to assert a lien against the building project, even though the middleman did no work at the construction site.
Vulcraft v. Midtown Bus. Park, Ltd.
, 1990-NMSC-095, 110 N.M. 761, 800 P.2d 195.
IV. PROCEDURAL ASPECTS.
Nonresident parties.
— An adjudication under New Mexico statutes not purporting to be a personal judgment against a nonresident defendant, service by publication was valid, the proceeding, as to such defendant, being in rem.
Genest v. Las Vegas Masonic Bldg. Ass'n
, 1902-NMSC-003, 11 N.M. 251, 67 P. 743.
A materialman in Colorado furnishing materials and machinery to a mining company in this state for use in the mine and mill was entitled to a mechanic's lien.
Stearns-Roger Mfg. Co. v. Aztec Gold Mining & Milling Co.
, 1908-NMSC-001, 14 N.M. 300, 93 P. 706.
Judgment void without service.
— A judgment of foreclosure of a materialman's lien obtained without service of process upon the owner of the property was as to lien void for want of jurisdiction.
Robertson v. Mine & Smelter Supply Co.
, 1910-NMSC-053, 15 N.M. 606, 110 P. 1037.
Assumpsit not proper procedure.
— Joint action in assumpsit, brought by contractor against owner and the latter's grantee, was not proper procedure for enforcing mechanic's lien.
Rupe v. N.M. Lumber Ass'n
, 1885-NMSC-020, 3 N.M. (Gild.) 393, 5 P. 730;
Straus v. Finane & Elston
, 1885-NMSC-024, 3 N.M. (Gild.) 398, 5 P. 729.
The laws of New Mexico do not give subcontractor personal cause of action
against owners, only a lien against the land or structure.
George M. Morris Constr. Co. v. Four Seasons Motor Inn, Inc.
, 1977-NMSC-064, 90 N.M. 654, 567 P.2d 965.
No personal cause of action.
— The mere establishment of a lien upon defendants' property did not warrant a personal judgment against them as owners, there being no contractual relation between them and the lienors.
Allison v. Schuler
, 1934-NMSC-072, 38 N.M. 506, 36 P.2d 519.
Burden on party establishing lien.
— To establish a valid materialman's lien, the burden was on defendant to prove that the heater was actually used in, and became a part of, the structure.
Branch v. Mays
, 1976-NMCA-086, 89 N.M. 536, 554 P.2d 1297.
No presumption of delivery.
— Evidence of delivery is generally as available to materialman as to the owner, and possibly more available to the materialman, since he normally makes the delivery to the contractor, not the owner, and therefore there is generally no presumption of delivery in favor of materialman.
Panhandle Pipe & Steel, Inc. v. Jesko
, 1969-NMSC-098, 80 N.M. 457, 457 P.2d 705.
No evidence of delivery.
— There was no evidence to show delivery of materials to defendant's lot which would support a lien for the claimed balance of $2,609.84 where payment made by defendant exceeded the total for materials delivered to the lot.
Blueher Lumber Co. v. Springer
, 1967-NMSC-034, 77 N.M. 449, 423 P.2d 878.
Where trial court weighed the evidence and found appellant's circumstantial proof to be inconclusive as to the fact of delivery of material by appellant to defendant, if properly sustained defendant's motion to dismiss under Rule 41(b) N.M.R. Civ. P. (now Rule 1-041B NMRA).
Panhandle Pipe & Steel, Inc. v. Jesko
, 1969-NMSC-098, 80 N.M. 457, 457 P.2d 705.
Use presumed from delivery.
— Use of the materials furnished by materialman in the structure, by owner, may be presumed from delivery on the theory that generally the owner is more familiar than the materialman with the disposition of the materials after they are delivered to the property.
Panhandle Pipe & Steel, Inc. v. Jesko
, 1969-NMSC-098, 80 N.M. 457, 457 P.2d 705.
Parol testimony sufficient.
— A written contract was not necessary to entitle a materialman to a lien, and it could be shown by parol testimony that the materials were used in the construction and improvement of the property.
Stearns-Roger Mfg. Co. v. Aztec Gold Mining & Milling Co.
, 1908-NMSC-001, 14 N.M. 300, 93 P. 706.
Privity of contract is not required to give rise to the right to a lien.
1958 Op. Att'y Gen. No. 58-148.
No lien against soil conservation district.
— The contractor's creditors may not impose a lien of any nature against the soil conservation district for the contractor's debts where the district had directly contracted with the contractor. 1958 Op. Att'y Gen. No. 58-148.
Law reviews.
— For survey of construction law in New Mexico, see 18 N.M.L. Rev. 331 (1988).
For note, "Under Certain Circumstances, New Mexico Law Now Allows Mechanics' Liens on Property Where Construction Never Took Place: Cubit v. Hausler," see 24 N.M.L. Rev. 527 (1994).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
53 Am. Jur. 2d Mechanics' Liens, §§ 1, 12, 30, 35, 56, 57, 58, 72 et seq., 109, 110, 111, 226, 256, 258, 264, 333, 334.
Scope and import of term "owner" in mechanic's lien statutes, 2 A.L.R. 794, 95 A.L.R. 1085.
Enforceability of a mechanic's lien against the property of a married woman for work performed or materials furnished under a contract made with her husband, 4 A.L.R. 1025.
Validity and effect of contract against mechanics' liens, 13 A.L.R. 1065, 102 A.L.R. 356, 76 A.L.R.2d 1087.
Lien on public property, 26 A.L.R. 326.
Freight charges on material as within mechanic's lien statute giving lien for labor or material, or within contractor's bond securing such claims, 30 A.L.R. 466.
Material specially fabricated for and adapted to building, but not used therein, 33 A.L.R. 320.
Mechanic's lien for building erected by licensee, 45 A.L.R. 581.
After-acquired title as supporting mechanic's lien, 52 A.L.R. 693.
Interest of vendor under executory contract for sale of realty as subject to mechanic's lien for labor or materials furnished to purchaser, 58 A.L.R. 911, 102 A.L.R. 233.
Vendee in possession of land not owner within statute giving lien for labor or materials furnished owner, 58 A.L.R. 912, 102 A.L.R. 233.
Mechanic's lien for services of person supervising construction of building, 60 A.L.R. 1257.
Installation of electric fan as basis for mechanic's lien, 62 A.L.R. 254.
Estoppel of one who has apparently acquiesced in improvements on real property to defeat mechanics' liens by asserting antagonistic title or interest, 76 A.L.R. 317.
Mechanic's lien for labor or material for improvement of easement, 77 A.L.R. 817.
Lessee as agent of lessor within contemplation of Mechanic's Lien Law, 79 A.L.R. 962, 163 A.L.R. 992.
Garnishment in respect of obligation to contractor under construction contract where payment was conditional on contractor's furnishing release of all liens and claims, 82 A.L.R. 1118.
Liens for material and labor employed in construction of concrete forms, 84 A.L.R. 460.
Church property as subject of mechanic's lien, 85 A.L.R. 953.
Termination of lease as affecting mechanic's lien on building erected by tenant where lien did not attach to landlord's title, 87 A.L.R. 1290.
Arbitration proceedings as affecting mechanic's lien, 93 A.L.R. 1151.
Foreign corporation's failure to comply, or delay in complying, with conditions of its right to do business as affecting its right to assert mechanic's lien, 95 A.L.R. 367.
Amount of owner's obligation under his guaranty of subcontractor's or materialman's account as deductible from amount otherwise due principal contractor as against claims of other subcontractors or materialmen, 153 A.L.R. 759.
Formal requisites of notice of intention to claim mechanic's lien, 158 A.L.R. 682.
Right to mechanic's lien as for "labor" or "work," in case of preparatory or fabricating work done on materials intended for use and used in particular building or structure, 25 A.L.R.2d 1370.
Sufficiency of notice, claim or statement of mechanic's lien with respect to nature of work, 27 A.L.R.2d 1169.
Grading, clearing, filling, excavating, and the like, 39 A.L.R.2d 866.
Right to mechanic's lien upon leasehold for supplying labor or material in attaching or installing fixtures, 42 A.L.R.2d 685.
Provision against mechanic's lien in contract between principal contractor and subcontractor as affecting, 76 A.L.R.2d 1087, 75 A.L.R.3d 505.
Amendment of statement of mechanic's lien claim as to designation of owner of property, 81 A.L.R.2d 681.
Services in connection with subdividing land, 87 A.L.R.2d 1004.
Water well-drilling contracts, 90 A.L.R.2d 1346.
Taking or negotiation of unsecured note of owner or contractor as waiver of lien, 91 A.L.R.2d 425.
Swimming pool as lienable item within mechanic's lien statute, 95 A.L.R.2d 1371.
Charge for use of machinery, tools, or appliances used in construction as basis for mechanic's lien, 3 A.L.R.3d 573.
Mechanic's lien for work on or material for separate buildings of one owner, 15 A.L.R.3d 73.
Surveyor's work as giving rise to right to mechanic's lien, 35 A.L.R.3d 1391.
Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanics' lien, or as extending time for filing such a lien, 51 A.L.R.3d 1087.
Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.
Vacation and sick pay and other fringe benefits as within mechanic's lien statute, 20 A.L.R.4th 1268.
Right of subcontractor's subcontractor or materialman, or materialman's materialman, to mechanic's lien, 24 A.L.R.4th 963.
Delivery of material to building site as sustaining mechanic's lien - modern cases, 32 A.L.R.4th 1130.
Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.
Timeliness of notice to public works contractor on federal project, of indebtedness for labor or materials furnished, 69 A.L.R. Fed. 600.
56 C.J.S. Mechanics' Liens §§ 1 to 120, 307.