the district court upon the pleadings, then I am of opinion that the denial of possession in the answer forbids a judgment on the pleadings. But I am quite satisfied that this particular matter in the judgment was an agreement of the parties. The judgment itself states that it was rendered upon the complaint of plaintiff, and the answer of defendant, and the motion for judgment on the pleadings, and the admission and agreement of the parties. Upon a motion for judgment on the pleadings, I do not understand why parties may not agree before the court, and have the agreement go in the record, as it has gone in the judgment in this case, that a certain condition of affairs is the fact, which fact partially modifies the position taken by the pleadings. Such is what the parties, in my opinion, have done in this case in the district court. I think they intended to, and did, present to the district court a situation which may be stated as follows: "Plaintiff's possessio pedis of the actual ground in controversy is conceded, and conceded to be, and to have been, adverse, if, under all the other facts in the case, his possession under those circumstances can be held, as a matter of law, to be an adverse possession." And it was this question of law which I understand the parties, by their pleadings and admission and agreement, intended to, and did, present to the district court, and which was there decided. I think that this was the theory of the case below, and the contention of the parties, and the point of view of the court. Why may not this court properly take the same point of view, and decide whether the judgment should have been rendered upon the pleadings, in connection with the admission and agreement? But as my associates consider that what I have understood to be an agreement or stipulation on the hearing was either not one, or must be disregarded, I will reserve an opinion upon the questions of law until they come to this court on any further appeal that may be taken.

ing under the laws hereby repealed." Held, that the statute of 1890 applied, and plaintiff's action was not barred.

2. Rev. St. U. S. §§ 2339, 2340, recognize the right to go on the public lands, and to construct ditches for mining, agricultural, and other purposes; and the right of way so taken and held is acknowledged, all patents being subject to such right. Laws 1890. p. 24, § 1, gives a lien for work done under contract with the owner of any land, to the extent of his interest, and provides that "any person having an assignable, transferable or conveyable interest shall be deemed an owner," and that the lien shall attach to another or greater interest acquired by the owner after the commencement of the work. Held, that one who contracts with an irrigation company to construct its ditch has a lien on the ditch, the right of way being obtained by the irrigation company as fast as the ditch was constructed.

*

*

3. Such lien has priority over a trust deed executed by the irrigation company before the contractor commerced work.

4. Before the commencement of an action by the contractor to enforce the lien, in a suit by subcontractors against the contractor, it was determined that the estimates of the irrigation company's engineer were fraudulent, and judgment for the corrected amount was rendered against the contractor; and, the irrigation company having been made a party, judgment over was rendered against the company in favor of the contractor for the same amount But the amount due the contractor, according to the estimates, was not litigated between him and the company. An appeal in this case was still pending. Held that, in the action to enforce the lien, the amount in litigation in the pending suit was rightly excluded.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by William Garland against the Bear Lake & River Waterworks & Irrigation Company, the Jarvis-Conklin Mortgage Trust Company, and Corey Bros. & Co., to enforce a mechanic's lien. From a judgment enforcing plaintiff's lien for a less amount than claimed, and establishing its priority over the Jarvis-Conklin Company's trust deed, the latter company, plaintiff, and the irrigation company appeal. Affirmed.

W. L. Maginnis and Sandford B. Ladd, for appellant William Garland. H. M. Beardsley and Evans & Rogers, for appellant Jarvis-Conklin Mortgage Trust Company. Kimball & Allison, for respondents Corey Bros. & Co.

ZANE, C. J. It appears from this record

that in 1889 the Bear Lake & River Waterworks & Irrigation Company undertook to construct a water ditch or canal through the counties of Cache and Box Elder, and that on the 16th of the following August the plaintiff contracted with the company to construct the first 12 miles of it; that he immediately entered upon its performance, and completed the work on October 31, 1890; that during its progress he sublet parts of it to Annett & Thompson and their assignors, and to McMartin, who performed the work let to them. All of the contracts provided that payments should be made on measurements and estimates of the company's engineer. It also appears that Corey

Bros. & Co. did work on the canal under a contract bearing date May 1, 1890, with the company, and it further appears that on October 1, 1889, the company executed to the Jarvis-Conklin Mortgage Trust Company a deed of trust to all property it then owned or might acquire, to secure 2,000 of its bonds, of $1,000 each; that Annett & Thompson, in the summer of 1890, brought suit against Garland, alleging that the estimates of the company's engineer were fraudulent and incorrect, and claiming a greater sum. At the same time, Garland brought suit against McMartin, and he pleaded a set-off for work alleged to have been done for the former. While these actions were pending, Garland finished his work, and filed his statement for a lien, and included in it the amount due, according to the measurement and estimate of the company's engineer, and the excess claimed by his subcontractors. In these actions the waterworks and irrigation company was made a party, and the result of the trial was, the estimates of the company's engineer were rejected, and the court, in its judgment against Garland, allowed the subcontractors the full amount of their claims, and rendered judgment against the waterworks and irrigation company, in favor of Garland, for the amount of the excess over the estimate of the company's engineer. Pending the suits, the plaintiff, William Garland, commenced this action against the Bear Lake & River Waterworks & Irrigation Company, the Jarvis-Conklin Mortgage Trust Company, as trustees, and Corey Bros. & Co. All of the defendants answered, setting up the foregoing facts, and Corey Bros. & Co. also filed a cross complaint, in which they alleged the amount of work done by them, and the recording of their lien, and asked for its enforcement. Upon the hearing, the court entered a decree in favor of Garland against the waterworks and irrigation company for $89,551.33,-the amount due and unpaid, according to the estimate of the company's engineer, and disallowed plaintiff's claim for work in excess of that estimate, for which a decree had been rendered in his favor in the action by the subcontractors. The court also found for Corey Bros. & Co. $12,572.78, against the same defendant, and declared these two amounts to be first and equal liens upon the canal, and ordered a sale thereof for their satisfaction. From this decree, the plaintiff, the water and irrigation company, and the Jarvis-Conklin Mortgage Trust Company have appealed.

The plaintiff did not commence this suit to enforce his lien until nine months after he had filed the statement for a lien in the recorder's office. The law in force when plaintiff made his contract, and commenced work, required an action to enforce the lien to be commenced within 90 days after filing the statement. The water and irrigation company insist that the plaintiff lost his lien because he did not commence suit within v.34P.no.4-24

that time, while the plaintiff claims that his right to a lien, and to the remedy to enforce it, must be determined (as the court below held) by the law in force March 12, 1890, which permits the suit to be commenced within one year after the statement is filed. Section 32 of the latter act is as follows: "All acts and parts of acts inconsistent with the provision of this act, and sections 3806 to section 3820 both inclusive of the Compiled Laws of Utah 1888, are hereby repealed; provided that the repeal of said acts or part of acts, or any of them, shall not affect any right or remedy nor abate any suit or action or proceeding existing, instituted or pending under the law hereby repealed." The right and remedy referred to in this provision are the lien, and the means the law furnishes to enforce it. The contract, of itself, does not give the lien, or the right to the remedy to enforce it. When the work under the contract is done, and the statement is filed, the lien comes into existence, and relates to the time of commencing the work or furnishing the materials; and when the work is done or the materials are furnished, and the statement is filed, and a breach of the contract has occurred, the right to the remedy exists. If the party contracting for the labor or materials refuses to comply with the contract before the other party has done any work or furnished any materials, the latter has his right to damages, and the ordinary remedy to recover them, but in that case there is no mechanic's lien. If, after the latter commences work or furnishes some material, the former refuses to permit him to complete the work or furnish more material, the party who has done some of the work or furnished some material, upon filing the statement required, has a lien to that extent, and may avail himself of the remedy to enforce it. The obligation to perform the contract arises when it is signed by the parties, and delivered. The lien arises when work is done or materials are furnished under it, and the statement is filed, and it relates then to the time the work or delivery of the materials commenced. The lien does not arise until some of the work is done or some of the materials are furnished, and the party for whom the work is done or to whom the materials are furnished has refused or failed to comply with the contract, and the statement has been filed. So with respect to the remedy. If the party to the contract for whom the work is to be done, or the material is to be delivered, violates it before such work or delivery is commenced, the other party has a right to the ordinary remedy, but not the right to the lien, or to the remedy to enforce it, referred to in the mechanic's lien law. But if, after such work or delivery commences, the party for or to whom such work or delivery is due violates the contract, and the statement is duly filed, the right to the remedy to enforce the lien

accrues. The plaintiff did not complete the contract to do the work and furnish the materials until after the law of March 12, 1890, took effect, and there was no breach on the part of the water and irrigation company until after such completion, and the statement required was not filed till after that. It is plain that the court committed no error in applying the law of March 12, 1890, to the facts of the case. Turney v. Saunders, 4 Scam. 527; Ogden v. Saunders, 12 Wheat. 349.

The Bear Lake & River Waterworks & Irrigation Company insists that the court erred in holding that the plaintiff and Corey Bros. & Co. had a lien on the irrigation ditch in question, because it found that the right of way was acquired after the lien attached. The ditch was constructed on the public lands of the United States, for irrigation purposes, and the right of way was obtained by going upon the land, and making the ditch. By so doing the water and irrigation company obtained a right to occupy so much of the land as was necessary for its canal. It acquired such a right to use or transfer the same as the law recognizes and protects. Sections 2339 and 2340 of the Revised Statutes of the United States are as follows: "Sec. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purpose herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Sec. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the preceding section." These sections recognized the right of individuals to go upon the public land of the United States, and to construct ditches and canals for mining, agricultural, manufacturing, and other useful purposes, and the right of way so taken and held the law acknowledges and confirms, and makes all patents granted, and pre-emptions and homesteads allowed, subject to such rights. Jennison v. Kirk, 98 U. S. 453; Broder v. Water Co., 101 U. S. 274. The law under which this suit was instituted, securing liens to mechanics and others, declares "that whoever shall do work or furnish materials by contract, express or implied with the owner of any land shall have a lien upon

*

such land, building, structure or other improvement for the amount and value of the work so done or materials so furnished to the extent of the interest or claim of such owner any person having an assignable, transferable or conveyable interest or claim in or to any land building, structure or other property mentioned in this act, shall be deemed an owner." Laws 1890, p. 24, § 1. The section also provides that the lien shall attach to another or greater interest in the property acquired by such owner subsequent to the commencement to do work or furnish materials, before the lien is established by process of law. The lien of the plaintiff and of Corey Bros. & Co. relates to the time they commenced work on the ditch, and as fast as it was constructed the right of way was obtained by the water and irrigation company. The contract was binding on both parties, and we must hold that the lien attached as the work progressed. The water and irrigation company will not be heard to say that the lien did not attach to the ditch which the parties who constructed it brought into existence. The law will not permit the company to say "We have the property that your labor created and gave us, but we will not compensate you for it, or concede your lien to secure its payment." We are of the opinion that the defendant was the owner of the ditch, within the meaning of the law quoted, and that a lien to secure the amount due the plaintiff and Corey Bros. & Co., respectively, relates to the time they commenced work. Turney v. Saunders, 4 Scam. 527.

The Jarvis-Conklin Mortgage Trust Company insist that the court below erred in holding that the lien in favor of Corey Bros. & Co. on the canal was superior to the trust deed on the same property to secure its debt. It is true that the Jarvis-Conklin Mortgage Trust Company obtained their deed of trust before Corey Bros. & Co. commenced work, and that the deed, by its terms, included all the property the water and irrigation company then had, or might thereafter acquire. When mechanics, material men, or other persons make improvements on land on which there is a mortgage or trust deed, such mortgage or trust deed will be superior to the lien to secure the mechanics or other persons; but the water and irrigation company had no ditch or canal which the deed of trust could transfer to the trustee, until Corey Bros. & Co., by their labor, brought it into existence, and as fast as they constructed the canal their lien attached to it. The trust deed could not transfer the canal from the water and irrigation company to the trustee until it was constructed; until the property came into existence. Under the mechanic's lien law relied upon, we do not think a man can execute a deed of trust on a canal to be constructed on the public lands, and then employ men to build it, and after they have done so, and claim the security of the lien,

turn upon them, and say he had transferred the property to a trustee before their labor had brought it into existence. We are of the opinion that the court below was correct in holding the lien of Corey Bros. & Co. superior to the trust deed.

In the suit by the subcontractors Annett & Thompson against William Garland, and the suit of the latter against the subcontractor McMartin, it was alleged that the measurements and estimates authorized by the contracts, and made by the engineer of the Bear Lake & River Waterworks & Irrigation Company, were fraudulent and incorrect; and on motion of Garland the latter company was made a party to those actions, and the issue as to the correctness of the measurements and estimates of the engineer was tried, and decided against the company, and the actual amount found due exceeded such estimate by $23,000, and a decree was rendered against Garland for the full amount of the subcontractors' demand, including this excess,-$23,000. A decree was also rendered in favor of Garland against the water and irrigation company for this $23,000, but the amount due Garland, according to the estimates of the engineer, was not litigated between him and the company. In the suit in hand the plaintiff claims, not only the amount due according to the estimate, but the $23,000 excess, as well. The trial court, in its decree, gave him $89,551.33, the amount due according to the estimates of the engineer, but disallowed the excess, for the reason that plaintiff had a decree for that part of his claim against the water and irrigation company. He alleges this ruling as error. The decree against the water and irrigation company in favor of Garland, in the suit of the subcontractors against him, was reversed by this court on appeal, (30 Pac. Rep. 365,) and from the judgment of reversal an appeal is now pending in the supreme court of the United States. We must presume that the plaintiff will finally obtain whatever is due him in that case. We hold that the court below rightly excluded the amount in litigation in that case from the decree in this.

Numerous other errors are alleged in this record, which, upon examination, we hold are not well assigned. The judgment of the court below is affirmed.

BARTCH, J., concurs.

(1 Okl. 406)

JORDAN et al. v. GOLDMAN. (Supreme Court of Oklahoma. Sept. 16, 1891.) PUBLIC LANDS-INDIAN TITLES-CONSTRUCTION OF

TREATIES.

1. United States treaties with the Cherokee Nation of May 6, 1828, and February 14, 1833, granted it 7.000.000 acres for a permanent home, and further provided that, “in addition to the 7,000,000 acres of land thus provided for and bounded, the United States further guaranty to the Cherokee Nation a perpetual

outlet west, and a free and unmolested use of all the country west, of the western boundary of said seven millions of acres, as far west as the sovereignty of the United States and their rights of soil extend." Treaty of December 29, 1835, provided for the setting apart of 800,000 acres as a part of the permanent home of the Cherokee Nation, "it being apprehended that the seven million acres set apart for that purpose were not sufficient." Held, that the Cherokee Nation could use the lands set apart for an outlet for that purpose only, and a settlement by them or others under license from them on the outlet, and the operation of stone quarries thereon, was an unwarranted extension of the guaranty made by the treaties.

2. Nor are the rights of the Cherokee Nation in such outlet enlarged by the treaty of 1866, which provides that the United States may settle friendly Indians in any part of the Cherokee outlet, the lands to be paid for to the Cherokee Nation, and that the Cherokee Nation may retain the right of possession and jurisdiction over all of the outlet until thus sold and occupied, after which their jurisdiction and rights of possession to cease forever as to the land so sold and occupied.

Bill by J. W. Jordan and others against Henry J. Goldman for an injunction to restrain defendant from ejecting them from the Cherokee outlet, and from closing up a quarry operated by them. Injunction de nied.

James Brazzolara, for plaintiffs. Horace Speed, for defendant.

GREEN, C. J. This is a bill in chancery, on the federal side of the court, for an injunction against the defendant to restrain him from doing certain acts against the persons and property of the complainants, alleged to be in violation of the rights of complainants, as citizens of the Cherokee Nation of Indians, and Cherokees by blood, and therefore unlawful, and for the doing of which complainants have no adequate remedy at law. The bill alleges that complainants are citizens of the Cherokee Nation, and Cherokee Indians

by blood. That in 1883 they established a farm and improvements on what is known as the "Cherokee Outlet," and within the jurisdiction of this court, and in accordance with the laws, usages, and customs of the Cherokee Nation; and that the said Cherokee outlet is in possession of and owned by the Cherokee Nation in fee simple. That complainants discovered on the farm a stone quarry, and, for the purpose of operating the same, obtained a license from said nation, in conformity with the laws and usages of the same, for a term of 10 years; and that such license has not expired. That complainants proceeded to open the quarry, and to mine and carry on the business of shipping stone. That they cleared the ground, made suitable openings to quarry and get out the stone, erected buildings and other conveniences for their laborers and employes, and built a switch or spur railroad to their quarry. That land was put in cultivation; derricks were purchased and placed in position, with necessary tools; and a full and complete plant was constructed to carry on the busi

ness of quarrying and shipping stone; and that complainants have expended and laid out about $6,000. That they have continuously been, and now are, conducting the business of quarrying and selling and shipping stone from said quarry, and delivering the same in the state of Kansas, as contracted for and ordered, from time to time. That they have built up and established a good business, and, in due course of business, have entered into numerous contracts for the sale and delivery of stone, which have not been executed and complied with. That complainants are upon the Cherokee outlet, and in possession of their premises, under and by virtue of their farming improvements, and by virtue of the said license from the authorities of the Cherokee Nation. That being citizens of the Cherokee Nation, to whom said outlet belongs, under the laws and constitution of the United States, and the treaties existing between the United States and the Cherokee Nation, they have a right to locate, be, and remain upon said outlet with their improvements and holdings. That defendant Goldman is first lieutenant of the fifth United States cavalry, a white man, having under him troop K of said fifth cavalry, and a detachment of 20 Indian scouts. That on the 28th day of February, 1891, the said defendant, with his command, came to said quarry, where complainants were at work, and, with force and arms, unlawfully and violently took possession of said quarry without authority of law. That defendant claimed to be acting under orders from the war department, directing that all intruders should be removed from said Cherokee outlet; and that he was ordered by said war department to destroy the track of said railroad, belonging to complainants, and all the buildings and improvements at and around said quarry, and to remove all tools, derricks, and other machinery in and about said quarry, over the line and into the state of Kansas; and that such removal would be made by force on or before 10 o'clock A. M. March 2, 1891; and that the said defendant will proceed to do so unless restrained from so doing by writ of injunction. That there is no right, power, or authority lawfully vested in, given, granted, or conferred upon, the said defendant, to remove the complainants, and to destroy the said premises. That, if the threatened acts of the defendant are carried out, the business of complainants, built up and established by years of industry and toil, will be ruined and destroyed, and complainants will be involved in a multiplicity of suits with their patrons, with whom they have contracts unfulfilled for the furnishing and delivering of stone. That the destruction of complainants' plant, buildings, and track will wholly destroy and lay waste their farming improvements and quarry, and cause complainants irreparable injury and damage, as said defendant and those acting under him are wholly insolvent,

and for that reason a judgment at law would be useless, and could not be collected. That complainants are not intruders upon said Cherokee outlet, within the scope and purview of the laws of the United States and the treaties made with the Cherokee Nation, or the laws governing trade and intercourse with the Indian tribes, but are lawfully thereon. To this bill of complaint, defendant Goldman appeared, and filed an answer, alleging, inter alia, as follows: That he does not know, and does not believe, that complainants are citizens of the Cherokee Nation, and Cherokees by blood. He does not admit that complainants established or located improvements on what is known as the "Cherokee Outlet," as alleged in their bill of complaint. He denies that the Cherokee outlet is within the jurisdiction or possession of the Cherokee Nation, and denies that said outlet belongs to the Cherokee Nation, in fee simple, or otherwise. He does not know whether complainants discovered the stone quarry, and does not know whether they obtained license from the Cherokee Nation, as alleged in their bill of complaint, but demands proof. He denies any knowledge of the opening and developing of the quarry, and the making of the switch; and does not know by whom the track and other conveniences, tools and derricks, and the quarry plant were brought to or placed upon or about said quarry, or the cost or value of the same, but demands proof. That on the 28th day of February, 1891, he found at said quarry a large number of persons, claiming different rights and interests therein, among whom was the complainant Jordan, but not the complainant Bushyhead, or his alleged guardian. That some of these persons were then, and for some time had been, carrying on the business of quarrying stone at said quarry, and shipping stone from said quarry, and delivering stone in the state of Kansas, under contract therefor, and at such other places as the contracts provided. That such business was a considerable business, and, in the progress thereof, large quantities of stone had been taken from the quarry; and that very large quantities were intended to be taken from sai quarry for general traffic; and that said quarry was and is within the Cherokee outlet. That among persons in and about said quarry were citizens of the United States; and that all of said persons were employed and engaged in working in and about said quarry, and were claiming some interest or right in the machinery or plant or quarry or the stone taken or intended to be taken therefrom. That under orders from the war department, dated December 31, 1890, and the proclamation of the president dated February 17, 1891, defendant was directed to proceed to the Cherokee outlet, with the troops and Indian scouts mentioned, and drive out all persons unlawfully in the Cherokee outlet, and all cattle and other