terests, for temporary convenience, and re movable by the tenant at his pleasure. Ma. chinery placed by an electric light company in a building erected by them on leased land does not become a part of the realty, and may be removed by the creditor on execu tion. Havens v. Electric Light Co., supra.

There is another fatal defect to the bill raised by the demurrer, and that is defect of parties. Where the law, as in this terri tory, only gives a lien against the legal interest or estate, the owner of the legal title is a necessary party. Phil. Mech. Liens, § 394; Peabody v. Society, 5 Allen, 540. The complaint sets forth who the owners of the legal title sought to be charged are, and afterwards complainants dismiss as to the infant heirs and guardian, leaving the case destitute of the necessary parties to obtain the relief sought. In such cases the general rule applies that he who is, at the time the suit is commenced, the owner of the building or structure upon which the lien is sought to be enforced, is a necessary party defendant, without whose presence the lien cannot be declared or enforced. Hughes v. Torgerson, (Ala.) 11 South. Rep. 209; 15 Amer. & Eng. Enc. Law, 165, and cases there cited. Or, as stated in other cases: "So, where a lien is sought to be enforced by filing a bill in chancery, a purchaser of the property before or after the filing of the notice of lien, but before the commencement of the suit to enforce the same, is a necessary party to such suit. A proceeding without them would be a nullity." Decker v. Myles, 4 Colo. 558; Marvin v. Taylor, 27 Ind. 73; Rice v. Hall, 41 Wis. 453; Lampson v. Brown, Id. 484; Green v. Sanford, (Neb.) 51 N. W. Rep. 967; Lowe v. Turner, 1 Idaho, 107. In Wright v. Cowie, (Wash.) 31 Pac. Rep. 878, it is held that the proceedings failed for the reason that the notice of lien showed that a person held a leasehold interest, and yet was not made a party to the suit, and it further holds that a mechanic's lien cannot be enforced against a part interest in the building.

In this case the notice of lien and the bill of complaint show that part of the owners were infant heirs, wards of chancery, which would require an order of court to authorize their estate to be bound, and none is shown. The notice of lien in this case was not sufficient. The requirement of the statute as to notice in this territory is the same as in the state of Washington, both being taken from the state of California. The statute in this respect was construed by the supreme court of the state of Washington in the cases of Warren v. Quade, and Manufacturing Co. v. Wilson, 29 Pac. Rep. 827-829; and it is therein held: Where the goods, material, etc., were not furnished to the owners directly, but were furnished to a firm or person named in the notice, in such case the statement of the terms and conditions of the contract should show that such relations

existed between the person to whom they were furnished and the owners as would bring him within the list of those who, under the lien law, could, for the purpose thereof, bind the owners. In this case it cannot be claimed that the notice of lien shows any such relation between Miles and the heirs as would authorize him to bind them. But, on the contrary, it sets forth in the notice that the claimant had no knowledge of the terms or conditions of the contract between George H. Miles and the owners of the premises. But it shows that he was their lessee, which precludes the power of his binding them by his contract for improvements, without such authority was expressly given in his lease, which is not shown. The case, therefore, not only comes under the rule in the Washington cases, which requires that the notice shall show that such a relation existed between the person to whom such material was furnished and the owners as, under the statute, as construed by the court, would bind them; but it affirmatively appears in the notice that no such relation existed, by showing such a state of facts that it could not have been part of the terms and conditions of the contract, without further showing that such authority was delegated in his lease, which is not claimed. In the case of Warren v. Quade, supra, the case was reversed, and remanded to the court below, with instructions to dismiss the action. In the case of Manufacturing Co. v. Wilson, supra, the judgment of dismissal below was affirmed, for the reason that under the same statute the notices of lien were insufficient, and lacking in the same particular as this under consideration, except that in the case under consideration there are other material defects raised by the demurrer, some of which have already been referred to. The supreme court of Washington, in Heald v. Hodder, 32 Pac. Rep. 728, after a careful consideration, reaffirms the rule laid down in the above case, and gives additional reasons for the construction given the statute by that court. This case clearly illustrates the reason for the rule. When it is shown that the relation of the person to whom the material was furnished and the owners was that of lessee and lessors, it is clear that the lessee I could only bind his leasehold interest, without the owners had lawfully authorized him to make the improvements; and the owners, in this case, as they were infants, could not do so without an order of court, which was not shown. The mere fact that one is in the lawful possession and control of lands does not give him authority to contract for the construction of buildings thereon, so as to give the contractor a mechanic's lien thereon. Lumber Co. v. Wilson, (Ark.) 19 S. W. Rep. 974. The agent of the owner may subject the property of his principal to a mechanic's lien for labor done or material furnished under a contract for build

ing purposes, when shown he had authority to make such contract with the owner. Paulsen v. Manske, 24 Ill. App. 95; Id., 126 Ill. 72, 18 N. E. Rep. 275; Moore v. Jackson, 49 Cal. 109; The James H. Prentice, 36 Fed. Rep. 777; Baxter v. Hutchings, 49 Ill. 116; McDonell v. Dodge, 10 Wis. 106. See Redman v. Williamson, 2 Iowa, 488; Woodward v. Railway Co., 39 La. Ann. 566, 2 South. Rep. 413; Owens v. Northrup, 30 Wis. 482; Cornell v. Barney, 94 N. Y. 394; Scales v. Paine, 13 Neb. 521, 14 N. W. Rep. 522; Copeland v. Kehoe, 67 Ala. 594. But a special agent, employed for a particular purpose only, and not connected with the subject of building, cannot bind the building for labor or material, with a mechanic's lien. McDonell v. Dodge, 10 Wis. 106; Proctor v. Tows, 115 Ill. 138, 3 N. E. Rep. 569. He might be in possession merely to take care of the property, or he might be an agent to rent it, or to sell the property; and in either event he would have no authority to contract for improvements upon it, and his contracts for that purpose would not bind the owner. Statutes authorizing mechanics' liens are in derogation of the common law, and must be strictly construed. Hobbs v. Spiegelberg, 3 N. M. 222, 5 Pac. Rep. 529. As to the cases of E. J. Post & Co. and A. E. Staehlin, they are subject to the same defects as the case above considered, as to the insufficiency of notice and the defect of parties.

1. Act Cong. July 27, 1866, incorporating the Atlantic & Pacific Railroad Company, and granting lands in aid of the construction of the road, declares the purpose of the grant to be to secure the safe and speedy transportation of mails, troops, munitions of war, and public stores to the Pacific coast. Sections 8 and 9 provide that the grant is made and accepted on condition that work shall be commenced within two years; that a certain number of miles of road shall be constructed annually; that the whole shall be completed by July 4, 1878; and, in case of breach thereof, the United States may do all things needful to secure a speedy completion of the road. Section 20 provides that to better accomplish the object of the act, "namely, to promote the public interest and welfare," and "secure to the government at all times * ** the use and benefit of"' the railroad and telegraph lines, congress may at any time, having regard for the rights of such company, "add to, alter, amend, or repeal this act." Hed, that congress had the power to pass Act July 6, 1886, declaring a forfeiture of the unearned lands because of failure to construct the road within the time prescribed in the grant.

2. Act Cong. July 27, 1866, § 1, granted such railroad power, inter alia, to sue and be sued, and all "the powers, privileges, and immunities necessary to carry into effect the purposes of this act as herein set forth." Act Cong. April 20, 1871, authorized such corporation to mortgage its road: "provided, that if

the company shall hereafter suffer any breach of the conditions of the act above referred to. under which it was organized, the rights of those claiming under any mortgage made by the company to the lands granted to it by said act, shall extend only to so much thereof as shall be coterminous with or appertain to that part of the said road which shall have been constructed at the time of the foreclosure of said mortgage." Held, that Act April 20, 1871, was not intended to extend the time within which the company should complete the road to the date of foreclosure of such mortgage. Le. and Seeds, JJ., dissenting.

Error to district court, San Miguel county; James O'Brien, Judge.

Ejectment by the Atlantic & Pacific Railroad Company against Robert Mingus to recover possession of certain land. There was a judgment in favor of defendant, and plaintiff brings error. Affirmed.

Frank Springer, for plaintiff in error. Long & Fort, for defendant in error.

FALL, J. This is an action of ejectment, brought by the plaintiff in error to recover possession of 120 acres of land situated in San Miguel county, N. M. The plaintiff claims title under act of congress of July 27, 1866, the provisions of which necessary to be considered in this cause are as follows: "Be it enacted," etc.: "Section 1. That John Brown, * John C. Fremont, * * * and all such other persons who shall be associated with them and their successors, are hereby created and erected into a body corporate and politic in deed and in law, by the name, style, and title of the Atlantic & Pacific Railroad Company, and by that name shall have perpetual succession, and shall be able to sue, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States, and may make and have a company seal. And said corporation is hereby authorized and empowered to lay out, locate, construct, furnish, maintain and enjoy a continuous railroad and telegraph line, with the appurtenances, namely: Beginning at or near the town of Springfield, in the state of Missouri; thence to the western boundary of said state, and thence by the most eligible railroad route as shall be determined by said company, to a point on the Canadian river; thence to the town of Albuquerque, on the River Del Norte, and thence by the way of the Agua Frio, or other suitable pass, to the head wa ters of the Colorado Chiquito, and thence along the 35th parallel of latitude, as near as may be found most suitable for a railway route, to the Colorado river at such point as may be selected by said company for crossing. Thence by the most practicable and eligible route to the Pacific. The said com. pany shall have the right to construct a branch from the point at which the road strikes the Canadian river, eastwardly, along the most suitable route as selected, to a point on the western boundary line of Arkansas, at or near the town of Van Buren.

And the said company is hereby vested with all the powers, privileges and immunities necessary to carry into effect the purposes of this act as herein set forth. The capital stock of said company shall consist of one million shares of one hundred dollars each, which shall in all respects be deemed personal property, and shall be transferable in such manner as the laws of said corporation shall provide," etc. (Various details relating to the organization of the company.) "Sec. 2. And be it further enacted: That the right of way through the public lands be, and the same is, hereby granted to the said the Atlantic & Pacific Railroad Company, its successors and assigns, for the construction of the railroad and telegraph line as proposed; and the right, power and authority is hereby given to said corporation to take from the public lands adjacent to the line of said road, material of earth, stone, timber, etc., for the construction thereof.

Said way

is granted to said railroad to the extent of one hundred feet in width on each side of said railroad where it may pass through the public domain, including all necessary grounds for station buildings, workshops, depots, machine shops, switches, side tracks, turntables and water stations; and the right of way to be exempt from taxation within the territories of the United States. The United States shall extinguish as rapidly as may be consistent with public policy, and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation to the road named in the act. Sec. 3. And be it further enacted: That there be, and hereby is, granted to the Atlantic & Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails; troops, munitions of war and public stores over the route of said line and its branches, every alternate section of public land, not mineral, designated by odd numbers to the amount of twenty alternate sections per mile on each side of said railroad line as said company may adopt through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad, whenever it passes through any state, and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by plat thereof. filed in the office of the commissioner of the general land office. * And provid

ed further, that no money shall be drawn from the treasury of the United States to aid in the construction of the said Atlantic & Pacific Railroad." Section 4 provides the manner in which the railroad shall be examined by commissioners and accepted, and

v.34p.no.6-38

patents for lands issue as the road is constructed. Section 5 provides how the road shall be built. Section 6 provides for surveying of the land grant by order of the president, and withdraws from sale, entry, or preemption the said lands. "Sec. 8. And be it further enacted: That each and every grant, right and privilege herein, are so made and given to and accepted by said Atlantic & Pacific Railroad Company upon, and subject to, the following conditions, namely: That said company shall commence the work on said road within two years from the approval of this act by the president, and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish and complete the main line of the whole road by the fourth day of July, A. D. 1878. Sec. 9. And be it further enacted: That the United States make the several conditional grants herein, and that the said Atlantic & Pacific Railroad Company accept the same upon the further condition that if the said railroad make any breach in the conditions hereof, and allow the same to continue for upwards of one year, then and in such case at any time hereafter, the United States may do any and all acts and things which may be needful and necessary to insure a speedy completion of the said road." "Sec. 11. And be it further enacted: That the said Atlantic & Pacific Railroad, or any part thereof, shall be a post route and military road, subject to the use of the United States for postal, military, naval and all other government service, and also subject to such regulations as congress may impose restricting the charges for such government transportation." "Sec. 19. And be it further enacted: That unless the said Atlantic & Pacific Railroad Company shall obtain bona fide subscriptions to the stock of said company to the amount of one million dollars, with ten per centum paid, within two years after the passage of and approval of this act, it shall be null and void. Sec. 20. And be it further enacted: That the better to accomplish the object of this act, namely, to promote the public interest and welfare, by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times, but particularly in time of war, the use and benefits of the same for postal, military and other purposes, congress may at any time, having due regard for the rights of the said Atlantic & Pacific Railroad Company, add to, alter, amend or repeal this act." The defendant in error relied upon a United States patent issued December 10, 1891. There is no conflict of testimony as to the facts upon which the rights of the parties depend. The cause was tried by a jury, and a verdict of not guilty returned. Judgment accordingly entered, from which plaintiff sues out writ of error to this court. Errors assigned are: The rulings of the district court admitting in evidence defendant's patent, re

fusing to direct the jury to find for the plaintiff, refusing the instructions requested by plaintiff, and directing the jury to find for the defendant.

There is no question here as to the proper organization of the company, including the subscription to the stock within the time fixed. The company surveyed and located its route, and filed its plats from time to time, and the alternate sections of land within the 40-mile limit on each side of the located line were withdrawn by order of the president, in accordance with the provisions of section 6 of the act. By the eighth section of the act the company was required to commence construction within two years from the date of the approval of the same, and to build not less than fifty miles of railroad each year thereafter, and to complete the "whole road" by July 4, 1878. On April 20, 1871, up to which date the company had not complied with its contract in reference to the annual construction required, an act of congress was approved, which is as follows, viz.: "An act to enable the Atlantic & Pacific Railroad Company to mortgage its road. Be it enacted." etc.: "That the Atlantic & Pacific Railroad Company, organized under act of congress of July twenty-seventh, eighteen hundred and sixty-six, is hereby authorized to make and issue its bonds in such form and manner, for such sums, payable at such times, and bearing such rate of interest, and to dispose of them on such terms as its directors may deem advisable; and to secure said bonds, the said company may mortgage its road, equipment, lands, franchises, privileges, and other rights and property, subject to such terms, conditions and limitations, as its directors may prescribe. As proof and notice of the legal execution and effectual delivery of any mortgage hereafter made by said company, it shall be filed and recorded in the office of the secretary of the interior: provided, that if the company shall hereafter suffer any breach of the conditions of the act above referred to, under which it is organized, the rights of those claiming under any mortgage made by the company to the lands granted to it by said act shall extend only to so much thereof as shall be coterminous with or appertain to that part of the said road which shall have been constructed at the time of the foreclosure of said mortgage." After the passage of this act the company executed mortgages to secure bonds due at various times from 1901 to 1922, the greater number of those bonds being guarantied by the St. Louis & San Francisco and Atchison, Topeka & Santa Fe Railroad Companies. The interest on the bonds has been paid, and no breach, apparently, made in the conditions of the mortgage, except failure to construct the road with due diligence. Up to July 4, 1878, the date fixed for the completion of the road by the act of 1866, the company had completed less than 125 miles of road, all told; but prior to July 6, 1886, it

completed 560 miles from Albuquerque west, and about 50 miles, as claimed, in the Indian Territory. The line from Sepulpa, about 125 miles from the initial point, Springfield, to Aubuquerque, and from Mojave, 560 miles west of Albuquerque, remains to the present time uncompleted. On July 6, 1886, congress passed the following act, viz.: "Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that all the lands, excepting the right of way and the right, power and authority given to said corporation to take from the public lands adjacent to the line of said road material of earth, stone, timber, and so forth, for the construction thereof, including all necessary grounds for station buildings. workshops, depots, machine shops, switches, side tracks, turntables and water stations, heretofore granted to the Atlantic & Pacific Railroad Company, by an act entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast,' approved July twenty-seventh, eigh teen hundred and sixty-six, and subsequent acts and joint resolutions of congress, which are adjacent to and coterminous with the uncompleted portions of the main line of said road, embraced within both the granted and indemnity limits, as contemplated to be coustructed under and by the provisions of the said act of July twenty-seventh, eighteen hundred and sixty-six, and acts and joint resolutions subsequent thereto and relating to the construction of said road and telegraph, be and the same are hereby declared forfeited and restored to the public domain. Approved July 6, 1886." After the passage of this act, all the lands which had been prior to that time set aside and withdrawn under the act of 1866 were restored to the public domain, except those opposite and coterminous with the road actually constructed. Among the lands so restored was the tract now in question.

The question upon which we now have to pass is solely that of the validity or constitutionality of the act of 1886, known as the "Forfeiture Act." If the act is invalid or unconstitutional, the plaintiff should recover, for the grant was undoubtedly a grant in praesenti; floating, it is true, but becoming fixed upon the perform ance by the grantee of the conditions prescribed, and, when so fixed, taking effect as of the date of the granting act. Schulenberg v. Harriman, 21 Wall. 44, 60. Leavenworth, etc., R. Co. v. U. S., 92 U. S. 733, 741. The title of the grantee under such an act is superior to a United States patent issued for lands within the grant limits, acquired subsequent to the date of the act. Wright v. Roseberry, 121 U. S. 48S, 7 Sup. Ct. Rep. 985; U. S. v. Southern Pac. R. Co., 146 U. S. 593, 13 Sup. Ct. Rep. 163, and authorities supra. Defendant in error contends that the forfeiture act of 1886 is constitutional and legal;

that under section 9 of the act of 1866 power is expressly reserved to congress to forfeit, and that such power exists even if no such reservation was intended to be made; that the mortgage act of 1871 is only declarative of the right to mortgage, and its purpose was to remove all doubt of that right, and thus aid the company in obtaining funds with which to construct the road; that the mortgagees took only the title vested in the company by the terms of the granting act, subject to the right of the United States to forfeit, and that the rights or equities of the mortgagees are not now for the consideration of this court. Plaintiff admits that if uo right to forfeit had been reserved, and no consequences of a breach declared in the granting act, the right to forfeit would exist; but contends that, with the consequences of the breach expressly declared, these alone can ensue from a breach and exclude the right to forfeit. Plaintiff also insists that the government failed to comply with its part of the contract, as expressed in the grant, in reference to Indian titles, and that this failure of the grantor is largely responsible for the delay of construction by the grantee, and that the forfeiture act should not have been passed. Plaintiff further contends that the provisions of the mortgage act of 1871 show clearly that it was not the intention of congress to reserve the power to forfeit in the act of 1866, and, further, that the mortgage act created a new contract, extending expressly the term within which the grantee was to complete construction, and that under its provisions contracts have been made which are violated by the forfeiture act of 1886.

This court, in the case of Railroad Co. v. Esquibel, 4 N. M. 337, 20 Pac. Rep. 109, cited and relied on by counsel for defendant in error, held that "time was of the essence of the contract," and in construing a clause in the Texas Pacific act, similar to section 9 of the grant act of 1866, declared that the clause was for the benefit of the government, and not of the company. The purpose for which this grant was made is repeatedly declared in the different sections of the act; that is, "to aid in the construction of a road, to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores to the Pacific coast." Section 20 of the act provides that to "better accomplish" the objects thereof, namely, "to promote the public interest and welfare," etc., and to "secure to the government at all times

** *

*

the use and benefit of the same [railroad and telegraph lines] for postal, military and other purposes, congress may at any time, having due regard to the rights of said Atlantic & Pacific Railroad Company, add to, alter, amend or repeal this act." What stronger reservation could be desired? Are we to say, in the face of the provisions of sections 9 and 20, that the legislature and the courts are to have "due regard for the rights of the

grantee," and no regard whatsoever for the rights of the United States or of the public, and shall not consider the public welfare, which is expressly declared to be the object for which this enormous grant was made? Are we to say that the congress of the United States intended to create a corporation, give it the breath of everlasting life, grant to it sovereign powers of eminent domain, endow it with a princely estate vaster than a king dom of the old world, and set it above the laws, above the courts, above the people, above the government, making the "thing" greater than its creator? It is true that "a corporation created by the legislature, and endowed with certain powers and functions and property, the legislature reserving no interest in that which is given them, and no control over the succession of persons who form the corporation, or over the exercise of their functions, such a corporation is a private corporation, to whom a franchise has been given by a grant which is an executed contract, and that any deprivation of their property, or any disturbance or denial of their rights and functions, impairs the obligations of contracts." 3 Pars. Cont. 531; College v. Woodward, 4 Wheat. 519. It is also "a settled rule of construction that public grants are to be construed strictly," and, where the public interest is concerned, "any ambiguity in the terms of the contract must operate against the company and in favor of the public." Richmond R. Co. v. Louisa R. Co., 13 How. 81. Chief Justice Taney said: "The continued existence of a government would be of no great value if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations." Charles River Bridge v. Warren Bridge, 11 Pet. 584. Also 2 Inst. 496; Canal Co. v. Wheeley, 2 Barn. & Adol. 792. In the case of Northern Pac. R. Co. v. Traill Co., 115 U. S. 601, 6 Sup. Ct. Rep. 201, section 20 of the act creating the Northern Pacific Railroad Company, exactly similar to section 20 of the act under which the plaintiff company received its graut, was held to reserve to the United States the power to pass an act declaring that no land granted to the company should be conveyed, although earned, until the expense of survey of such lands had been paid by the company. It was urged that this last act was unconstitutional, upon the same ground as taken in 'the case at bar, and, indeed, it was so held by the supreme court of Minnesota; but the supreme court, by Justice Miller, held that section 20 "conferred this power on congress," by which not only was the grantee divested of its lands, but the taxing power of a municipal government denied.

Did congress, by the mortgage act of 1871,

Counties of Cass, etc., v. Certain Lands, 9 N. W. Rep. 761.