tion 1500. Code Civ. Proc., provides as follows: "No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator, except in the following case: * * *." This case is not within the exception. Section 1502 of the same Code provides as follows: "If an action is pending against the decedent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator, for allowance or rejection, authenticated as in other cases; and no recovery shall be had in the action unless proof be made of the presentation required." Unless the case is in some way relieved from the operation of the statute, it was error to proceed with the trial after the executors were substituted for the only answering defendant, and it was error to enter a judgment against the executors in the absence of any proof that the claim had been presented to them. It was held in Derby v. Jackman, 89 Cal. 1, 26 Pac. 610, that, "although due presentation of the claim be not denied, still it must be proven." And it was held in Falkner v. Hendy, 107 Cal. 49, 40 Pac. 21, 386, that, while "proof of the presentation of the claim is not a fact essential to the validity of a judgment where no issue has been made upon that question,

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the failure to make proof is ground for reversal when objection is made in the trial court, and the exception properly preserved." In some respects the Hendy Case is like the one at bar. The trial was in progress when Hendy died. His death was suggested, and it was ordered that the case be continued in the names of the executors; and at the first session after his death defendants objected to further proceeding with the trial or the taking of further testimony in the case, upon the ground that the claim upon which the action was based had not been presented for allowance to the executors of deceased. The evidence was being taken before a referee. The court said: "The referce should not have proceeded at all with the case until letters had been issued, and the representatives brought in. Litigants must know, at their peril, of the death of an adversary. Undoubt

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edly, respondent had the right to present his claim to the representatives of Hendy at any time within the period allowed by law for the presentation of claims, but he was not entitled to recover a judgment which will bind the estate of Hendy until such presentation had been made.”

2. Respondent invokes the doctrine of estoppel, and in support of his contention claims that, as Hanson & Co., as a firm, dealt with plaintiff, neither plaintiff nor Hanson could dispute the firm relationship, and that the personal representatives of Hanson stand in no better position. Citing Wise v. Williams, 72 Cal. 546, 14 Pac. 204; Yancey v. Morton, 94 Cal. 558, 29 Pac. 1111. We

cannot see that either the rule, or the reason of the rule, in these cases has any application here. The pleadings on which the parties went to trial showed, and it was proved without objection, that Hanson & Co. was only another name for Charles Hanson; that Hanson & Co. and Charles Hanson were one and the same person. When the court ordered the substitution of the executors "in the place and stead of Charles Hanson, sued as Hanson & Co.," they were not substituted as representatives of any partnership. The court could not make them representatives of a co-partnership, and deal with them as such, for they represented only Charles Hanson, deceased. If the action was to proceed on the theory that a partnership existed, the survivors of the partnership alone could close its affairs, and they should have been brought in as defendants, and the executors not made parties at all. If it was not a partnership, but merely another designation for Charles Hanson, then it was necessary to substitute his executors after his death, and the court very properly-we suppose on this latter assumption-made the order. In this attitude the case narrowed itself to an action against the executors representing Charles Hanson, deceased, and not representing in any sense a partnership. It so resulted, for the verdict was against the executors, and the judgment was against them with direction to pay the same in due course of administration. This was in direct violation of the statute, which required presentation of the claim before any judgment could be entered. Section 1502 "simply means that, when an action is pending against a decedent at the time of his death, the plaintiff therein is not relieved from the duty of presenting for allowance the claim upon which it is based, when the claim is of that character that he would have been required to make such presentation in order to preserve its validity as a claim against the estate if such action had not been brought in the lifetime of the decedent." Society v. Wackenreuder, 99 Cal. 503, 34 Pac. 219. Against the objection of defendants that it was in violation of subdivision 3, § 1880, Code Civ. Proc., plaintiff was permitted to testify to what Charles Hanson said and did prior to, at the time of, and after plaintiff's engagement to work for Hanson & Co., and after his work had ceased, as well as other facts occurring before the death of the deceased. The trial court held that plaintiff could testify to any facts occurring from the beginning of his employment to the close thereof, which would tend to establish an estoppel against the executors, now the defendants; and that, upon the estoppel being shown to the satisfaction of the jury, the jury could then consider the plaintiff's testimony on the merits, regardless of the Code provision, which declares: "The following persons cannot be witnesses: (3) Parties or assignees of parties to an action or proceed

CHIPMAN, C. Action to enforce a lien for street work claimed under the mechanic's lien law. Plaintiff had judgment, from which defendants appeal on bill of exceptions. This is the second appeal of the case. In the first appeal the judgment for plaintiff was affirmed in department (43 Pac. 599). On rehearing in bank (48 Pac. 1097, 59 Am. St. Rep. 174), the judgment was reversed, on the ground that section 1191, Code Civ. Proc., is unconstitutional, in so far as it attempts to impose a lien on land by virtue of an agreement on the part of one who is merely reputed to be the owner of such land.

1. Appellants claim that the effect of the decision is to leave no law in force creating a lien for the street work. The argument is that, by the amendment of 1887, the section as it read in 1885 was repealed, and, as the court holds it to be unconstitutional as it now reads, there is no longer any lien provided for or remedy given to enforce any lien. Section 1191, as amended in 1887 and as it now reads, is as follows: "Any person who, at the request of the reputed owner of any lot in any incorporated city or town, grades, fills in, or otherwise improves the same, or the street or sidewalk in front of or adjoining the same, or constructs any areas, or vaults, or cellars, or rooms, under said sidewack, or makes any improvements in connection therewith, has a lien upon such lot for his work done and materials furnished." the section stood in 1885 it read as above, omitting the words in italics.

As

It is unreasonable to suppose that the legislature intended to take the lien from the person who furnished labor or material where he contracts with the owner of a lot, and yet to give him a lien where he contracts with the reputed owner, who is not the real owner of a lot. Before we should hold that the statute was enacted with any such absurd intention some rule of construction must be pointed out that would compel it. It is altogether reasonable to believe that the legislature intended to retain the lien where the owner makes the contract, and to give also a lien where the reputed owner makes the contract. If the legislature failed in the latter object, it does not necessarily follow that the law, as it previously stood, was repealed. Repeals by implication are not favored, and it is a rule that no repeal by implication can

result from a provision in a subsequent statute, when that provision is itself devoid of constitutional force. McAllister v. Hamlin, 83 Cal. 361, 23 Pac. 357; Orange Co. v. Harris, 97 Cal. 600, 32 Pac. 594. A still further rule was stated in People v. Sutter St. Ry. Co., 117 Cal. 604, 49 Pac. 736, as follows: "The portions of the amended section, which are copied without change, are not to be considered as repealed, and again re-enacted, but to have been the law all along." Pol. Code, § 325. In a recent case the rules of construction were quite fully stated, and the authorities cited. People v. Pacific Imp. Co. (opinion filed Nov. 8, 1900) 62 Pac. 739. It was said on the former appeal: "The owner of real property may, by his acts or conduct, be estopped from questioning the acts of a reputed owner of such property, and may be bound by the acts of such reputed owner; but, in the absence of the elements of an estoppel, he will not be bound by the unauthorized acts of one who is merely reputed to be the owner." 117 Cal. 212, 48 Pac. 1097, 59 Am. St. Rep. 174.

This could not be so if the section as it stood in 1885 was repealed by the amendment of 1887; for, if there is no law making a lien where the owner contracts for the work, nothing a reputed owner could do with the authorization of the owner would create the lien. The reputed owner could not create the lien if the owner could not. But appellants contend that the portion of the decision last above quoted is obiter, and cannot be taken as authority; and it is urged that what was said in Mack v. Jastro, 126 Cal. 130, 58 Pac. 372, applies here, namely: "It is not so much a repeal by implication as it is that, the legislature having made a new and complete expression of its will upon the subject, this last expression must prevail, and whatever is excluded therefrom must be ignored.” We have examined the case of Mack v. Jastro, supra, and the cases cited in the opinion. They are all instances where the rule as to repeals by implication could not by any possibility be applied because the legislative intent was unmistakably shown to be that the later law should supersede the former law, in which case it is true that it is not a question of repeal by implication, but it is a question of enforcing the will of the legislature last expressed on the very same subject. Our mechanic's lien law was first enactcd in 1868 (Laws 1867-68, p. 589). Section 9 of that act gave the lien here contended for, and the section was carried into the Code of Civil Procedure upon its adoption in 1872, and became section 1184. It so remained unchanged until 1885 (St. 1885, p. 143), when it became section 1191 of the Code, and was amended by adding the words "or sidewalk” after the word "street." By the act of 1887, four sections of the Code relating to mechanics' liens, including section 1191, were amended, leaving the other sections untouched. There has been no general revision of the

mechanic's lien law since the adoption of the Codes, but changes have been made by amendments and modifications of, and additions to, the various sections. The law deals with the owner of the land in most instances, but in some cases it is provided that the owner and any person having an interest in the land shall be bound where the improvement is made with his knowledge, unless he shall within a certain time give the notice required by statute (section 1192); but at no time has the law been that the owner could not make the contract out of which a lien would arise. We cannot believe that the legislature intended to repeal the law as it has stood for a third of a century, and deprive laborers and material men of a lien heretofore given, and in such entire harmony with the general purpose of the law and of the constítution of the state. No such repeat has been made except it be by implication, and we do not think that any such consequence has resulted from the amendment in question.

2. It is contended that the evidence is insufficient to establish the alleged agency of defendant J. M. Lyons in acting for his codefendant wife, Ellen Lyons. The court found that the lot in question belonged to Mrs. Lyons as her separate property, but that her husband individually was the reputed owner thereof. The court also found "that, while said James M. Lyons was so the reputed owner of said lot of land, he requested said plaintiff to do the work hereinafter named, and he, both in his own individual behalf, and as the ostensible agent of his wife, Ellen, and in her behalf, though in his own name, entered into a written contract with the plaintiff for the performance of the same," etc. Again it is found "that said defendant Ellen Lyons had full knowledge of said contract, and of the performance of said work, and that she did not within three days after having obtained knowledge thereof, nor at all, give notice that she would not be responsible for the same, by posting notice * or at all." As the case was presented on the first appeal, and as first decided, the evidence went in on the theory that the lien would hold if the contract was made by the reputed owner. 43 Pac. 599. The question of agency was not then considered. At the last trial much additional evidence was taken, and particularly to show that the husband was acting as the agent, actual or ostensible, o his wife. Upon this point there is a conflict in the evidence. The testimony of both husband and wife is that the husband acted without any direct authority from his wife. The evidence adduced on behalf of plaintiff is largely circumstantial, although there is some evidence quite directly to the point that the husband had authority from his wife, and the husband testified that he told her he had signed the contract for the work not

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long after the work was started, and it is not pretended that she took any steps to disavow his act or to disclaim personal liability for the work. The court held in the former appeal that the notice required to be given by the owner under section 1192 did not apply to a case arising under section 1191, but was limited to cases arising under section 1183. Still the fact that Mrs. Lyons had notice that the work was going on under a contract made by her husband, and made no objection to it, would bear upon the question of agency and estoppel. There is, we think, sufficient evidence to support the finding that the contract was made on behalf of Mrs. Lyons, and by her husband as her agent, ostensible or actual.

3. It is contended that the evidence fails to support the allegation in the notice of lien as to reputed ownership. The statement was: "The said Ellen Lyons had full knowledge of the signing of said contract, and agreed to the same being done, and claims some rights in the property, but at all the times herein mentioned said James M. Lyons was, and now is, reputed to be owner of said lot of land." There is evidence tending to show that plaintiff was justified in assuming that Mr. Lyons was the reputed owner, and plaintiff states, also, that Mrs. Lyons claimed some rights in the property. If plaintiff made any mistake in thus stating the ownership, it was an honest one, and in no sense was it fraudulently made, or made for the purpose of deceiving any person, and the mistake could not prejudice his right to a lien. There was a substantial compliance with the requirements of section 1187. It has been held here that, if the lienholder in good faith "gives the name of the reputed owner, he shall not lose his lien if he shall afterwards ascertain that some other person was the owner." Corbett v. Chàmbers, 109 Cal. 178, 41 Pac. 873.

4. Appellants call attention to several alleged errors of law committed by the trial court relating to the admission of evidence offered by plaintiff. We are not informed by the brief of the grounds of objection, further than as they appear in the transcript when the objections were made. We have examined the transcript at the points indicated, and find no ruling that, in our judgment, could have prejudiced defendants' case. The general demurrer to the complaint is urged on the ground principally that there is now no law authorizing the lien. The view already expressed disposes of that question. We advise that the judgment be affirmed.

We concur: GRAY, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(7 Ariz. 376)

SLOSSER v. SALT RIVER VAL. CANAL CO. (Supreme Court of Arizona. June 1, 1901.) WATERS AND WATER COURSES IRRIGATION COMPANIES-PUBLIC AND PRIVATE AGENTS -SHAREHOLDERS-WATER RIGHTS-ARABLE AND IRRIGABLE LAND-WATER-RIGHT HOLDERS-PREFERENCE.

1. Under Comp. Laws, c. 55, § 3, providing that all inhabitants of the territory, owning or possessing arable and irrigable lands shall have the right to construct public and private acequias, and obtain the necessary water from any convenient river or stream, the ownership and possession of arable and irrigable land are essential to the acquisition of the right of appropriation of water from a public stream for purposes of irrigation.

2. A corporation not the owner or possessor of arable and irrigable land, though it may lawfully construct a dam, canal, or other conduit of water, and divert water from such stream for irrigation purposes, does not thereby become the appropriator or owner of the water so diverted.

3. A corporation diverting water from a stream for the purpose of supplying owners or possessors of arable and irrigable land, with whom it has contracted to perform such service, is a private agent, and cannot be compelled to render such service to others.

4. A shareholder in an irrigation company, who owns a water right by virtue of his ownership of stock, together with the ownership and possession of arable and irrigable land irrigated by such water right, cannot confer his priority of right by assignment or lease of his water right to be used for any particular season on lands which he does not own or possess, while he retains the land to which such right is attached, since a water right, to be effective, must be attached to and pertain to a particular tract of land, and cannot be made to do duty to such land, as well as to land not owned or possessed by such water-right holder.

5. Where an irrigation company supplying water to others than its water-right holders, who owned or possessed arable or irrigable land, was not an appropriator of the water carried, or the owner thereof, it was a public agent; and hence an owner of land who was not a water-right holder of the company was entitled, on payment of the charge for similar service made to other non water-right holders, to have delivered on his lands water sufficient for irrigation purposes in preference to other non water-right holders whose appropriations were subsequent in time, though they claimed under orders or leases from the water-right holders.

Davis, J., dissenting.

Appeal from district court, Maricopa county; before Chief Justice Webster Street.

Action by Henry E. Slosser against the Salt River Valley Canal Company, a corporation, for mandatory injunction to require defendant to deliver water. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed.

W. H. Stilwell and J. H. Kibbey, for appellant. C. F. Ainsworth and L. H. Chalmers, for appellee.

SLOAN, J. The facts presented by the record are as follows: The Salt River Valley Canal Company is a corporation organized under the general incorporation act of the territory, and its articles bear date the 6th day of September, 1875, The articles recite

that: "We, the undersigned, being desirous of forming a corporation for the purpose of supplying a portion of the valley lying upon the north side of the Salt river, and in the vicinity of the town of Phoenix, with water for irrigation and for milling, manufacturing, and mechanical purposes, under and in pursuance of the laws of the territory of Arizona, do hereby certify and declare as follows: First. That the said corporation shall be known by the name of the Salt River Valley Canal Company. Second. That the object of the said corporation shall be to carry on and conduct the business of supplying a portion of the valley lying upon the north side of Salt river, in the county of Maricopa and territory of Arizona, and in the vicinity of Phoenix, with waters for irrigation and for milling, manufacturing, and mechanical purposes, and to this end and for this purpose to purchase, construct, build, or dig such canals, ditches, or flumes as may be necessary to convey water from Salt river; taking it from said river at a point at or near the head of the old ditch used by the Swilling Irrigating Canal Company, and conveying said water to such point or points in the above-described valley of Salt river as may be necessary for the disposal of or use of said water. Third. The amount of capital stock of said corporation or company shall be twenty thousand dollars, which will be divided into forty shares, of the value of five hundred dollars each." It appears that prior to the organization of the Salt River Valley Canal Company a company known as the "Swilling Irrigating Company" owned and operated what was known as the "Swilling Canal," which had been constructed prior to the year 1871. It further appears that the incorporators of the defendant company were for the most part stockholders in the Swilling Irrigating Company, and that one of their purposes in organizing the defendant company was to purchase what was known as the "South Branch," or "Middle Extension," of the Swilling canal, the property of the Swilling Irrigating Company. After the organization of the defendant company the stockholders in the Swilling Irrigating Company whose lands were irrigated from this South Branch, or Middle Extension, of the Swilling canal, joined in a conveyance of the water rights held by them in the Swilling canal, and of their interests in the Swilling canal, to the defendant company, and received in exchange therefor shares of stock in the defendant company to the amount of 37 shares. As there were 40 shares of stock in the defendant company, 3 shares were left undisposed of after the issuance of the 37 shares in exchange for the water rights and stock in the Swilling Irrigating Company. These three shares were subsequently sold by the company at public auction. In 1884 the capital stock of the Salt River Valley Canal Company was increased to 50 shares, and the additional 10