er of Maricopa county on that day. It was shown that the original map, after being in the recorder's office some time, had become much worn, and "about to fall to pieces," and about the year 1889 or 1890 was copied into a book in the recorder's office, at the instance of the city council of Phoenix, since which time the original became lost, and could not be found. It is contended by appellant that the evidence fails to show that the map relied on is a copy of a map made by David Neahr, or authorized to be made by him, of his addition to Phoenix; but we think the evidence on that point admits no other conclusions than that the map offered in evidence was a copy of the original, and the only map of Neahr's addition made by Patrick. Patrick himself testifies that it was, and Osborn, the county recorder, testifies that it was a copy of the map which Patrick filed in the recorder's office, which he saw in 1883, and which remained there from that time until 1889. There is no evidence contradicting these two witnesses, or establishing any other hypothesis than the fact that this map was the only one made by Patrick of Neahr's addition. The record discloses the fact that Patrick made the map at the instance of one De Forrest Porter, with whom David Neahr made a contract during his lifetime, to wit, May 3, 1879, placing in the hands of said Porter, for sale and disposal, the said N. E. 4 section of land comprising Neahr's addition, and agreeing that said Porter should have full control of said property "in negotiating sales thereof, and in placing the same on the market"; and, using the language of the contract, "it is further agreed that the last de scribed tract of land [said N. E. 4] is to be subdivided into lots, the size and numbers as shall be determined upon by the parties hereto hereafter, and shall be sold according to subdivisions so made." Appellant claims that none of the acts of Porter and Patrick amounted to a dedication by Neahr of the land in question; and, truly, they might not have, had no action been taken by Neahr to ratify and indorse the acts of them both by his making sales of divers lots of land in Neahr's addition, reference being had to this map made by Patrick, at the instance of Porter, for a more complete description of the property sold, which the stipulation shows he did. "His sanction, when given, relates back to the original transaction, and gave equal effect to it as if he, the principal, had been present." Barclay v. Howell, 6 Pet. 498. These acts of Neahr show an irrevocable dedication of the land in question to the public, and the fact of recording or not recording the map makes no difference. "The mere act of surveying land into lots, streets, and squares by the owner will not amount to a dedication; yet the sale of land with reference to such plat, map, or plan, whether recorded or not, will amount to an immediate and irrevocable dedication of such streets, etc., so far as the owner is concerned." Dill. Mun. Corp. c. 17, §

505; U. S. v. City of Chicago, 7 How. 185, 5 Am. & Eng. Enc. Law, pp. 405-407, and many cases cited.

Purpose of the dedication: Appellant contends that, if there was any dedication of this land to the public, it was only for the purpose of a site for capitol grounds when this territory should become a state, and introduced evidence that several times, beginning in the year 1883, David Neahr offered the land for that purpose in letters to the speaker of the house of the territorial assembly. But at that time, the deuication to the public having been complete, Neahr had no further control over it. Huber v. Gazley, 18 Ohio, 18; San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405; Maywood Co. v. Village of Maywood, 118 Ill. 61, 6 N. E. 866; Town of Lebanon v. Commissioners of War. ren Co., 9 Ohio, 80. While a party may sometimes testify as to his original intention in regard to the dedication to the public, the dedication is generally proved by evidence of the owner's acts, together with the surrounding circumstances. Bidinger V. Bishop, 76 Ind. 244; McKee v. Perchment, 69 Pa. St. 342; 24 Am. & Eng. Enc. Law, p. 9, and cases cited. By reference to the map of Neahr's addition in the record of this case, it will be observed that the street which would run through this land if extended is marked on the map as "Park Avenue," on both sides of the tract, which furnishes some evidence that the donor intended that the tract should be a park, whatever ideas he may have afterwards entertained of its becoming a site for the capitol building.

As to the acceptance by the city of Phoenix: "In order to dedicate property for public use in cities and towns and other places, it is not essential that the right to use the same shall be vested in a corporate body. It may exist in the public, and have no other limitation than the wants of the community at large." New Orleans v. U. S., 10 Pet. 662. "And, where such lots and streets dedicated by plat are afterwards included in an old and adjoining town by extending the corporate limits thereof, no proceedings by the corporate authority for the condemnation of any such streets are necessary. They are already public streets by prior dedication." Fulton v. Town of Dover (Del. Ch.) 6 Atl. 633. "The open square in a town may be dedicated to the public by its owner, and a formal acceptance by the town is not necessary to make the dedication complete. Acceptance may be presumed if the gift is beneficial, and user is evidence that it is beneficial. No particular length of time is necessary to make a dedication binding. Abbott v. Cottage City (Mass.) 10 N. E. 325. "The public authorities must be allowed a reasonable time for opening and improving public streets, as their resources and public necessity may allow and require. Town of Lake View v. Le Bahn, 120 Ill. 92, 9 N.

E. 269; Meler v. Railway Co., 16 Or. 500, 19 Pac. 610. This land did not become a part of the city of Phoenix until the year 1885, but certainly it had been accepted on the part of the public by those persons who had bought lots in the addition. Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839. And on the 6th of February, 1888, the city council of Phoenix, upon the petition of several citizens that the plaza in Neahr's addition be cleared, plowed, and ditched, instructed the street and alley committee to "clear up the plaza." This, alone, we think, was a sufficient and timely acceptance by the city, if, in fact, any acceptance by it was necessary.

The only remaining point to be noticed is as to the estoppel of the city by reason of its having assessed this land for municipal taxes. On that point we are satisfied with the doctrine enunciated in the case of San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405, wherein the court says: "When the block was dedicated to the use of the public as a public square, it became a part of the public grounds of the town, and could not be legally assessed or taxed for state, county, or municipal purposes; and the erroneous action of officials in the respects named could not impair the rights of the public or confer rights upon the defendant. The doctrine of estoppel has therefore no application."

The judgment of the district court is affirmed.

STEAUBLI v. BLAINE NAT. BANK. (Supreme Court of Washington. March 18, 1895.)

CONVEYANCE OF PERSONALTY-IDENTITY OF PROPERTY-WAREHOUSEMAN'S RECEIPT.

1. A mill owner, to secure his note, gave the payee a receipt signed by the manager of his mill, as "warehouseman," stating that 150,000 shingles, valued at $240, were in the dry house of his mill, subject to the order of the payee. At the time the receipt was given the shingles were in the process of manufacture. The dry house was a place where the surplus shingles, the product of the mill, were stored until ready for shipment. Held, that the title to the quantity of shingles named did not pass to the holder of the receipt, so as to support an action by him against one who interfered therewith.

2. The fact that a receipt given by a mill owner is signed by the manager of his mill, as "warehouseman," does not make it a warehouseman's receipt.

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by T. G. Steaubli against the Blaine National Bank. From a judgment for plaintiff, defendant appeals. Reversed.

A. E. Mead and Black & Leaming, for ap pellant. No appearance for respondent.

HOYT, C. J. This action was brought to recover the sum of $240, which, it was al leged, had been received by the defendant for the use and benefit of the plaintiff. The proofs disclosed the fact that it was claimed that the defendant had received the proIceeds of 150,000 shingles which belonged to plaintiff. Hence, the first question to be de cided is as to the title to the shingles, the proceeds of which, it was alleged, had been appropriated by the defendant. If it does not appear from the proofs that such shingles were the property of the plaintiff, it will be unnecessary to inquire further as to the rights of the parties. His claim of title grew out of a transaction substantially as follows: He made a loan of $200 to the proprietor of a mill engaged in the manufacture of shingles, and took a note therefor, and, as security for its payment, received an instrument in the following form: "Inter national Mill Co., Manufacturers of Cedar Shingles. J. B. Chown, Proprietor. Blaine Wash., Nov. 18, 1891. Received from J. B. Chown 150,000 shingles, valued at $240, subject to the order of T. G. Steaubli, now in dry house at mill. C. H. McKnight, Ware houseman." At the time this receipt was given the shingles in question were in proc ess of manufacture. The C. H. McKnight who signed it as warehouseman was the manager of the mill, and the so-called ware house was a place where the surplus product of the mill was stored until ready for ship ment. Did the title to the quantity of shin gles therein stated pass to the holder of such receipt? It is clear that the title to no par ticular lot of shingles passed, for the reason that there was no segregation and setting aside of the particular shingles therein de scribed; and in our opinion it is equally clear that no title passed to the quantity o shingles therein mentioned, for two reasons First, because there was no proof of any uniform character or value of all of the shin gles that were stored in the warehouse; and second, there was no proof which would war rant us in holding that the receipt in ques tion constituted what is known as a "ware houseman's receipt." The only thing in the least tending to give it that character was the addition of the word "warehouseman" to the signature of McKnight; and this was entirely insufficient for that purpose, in view of the fact shown by the plaintiff's own testimony, to the effect that the shingles were held by the mill company under substantially the same conditions as the product of mills of the kind is generally held. The only way that title to any specific portion of the product of the mill could pass would have been by such a description as would enable the exact property intended to be conveyed to be identified, and selected from that with which

it was surrounded, or by having it so set aside and taken possession of by the one claiming title thereto as to constitute a change of possession from the grantor to the grantee, within the meaning of our statute as to sales of property of the value of $50 or more. What we have said in reference to the acts necessary to pass title has, of course, been in view of the circumstances of this case, and it is not our intention to here decide as to the acts necessary when the controversy is between the grantor and the grantee. Here the question was between the grantee and a stranger to the contract, who, it was claimed, had interfered with the property. At the time the plaintiff rested, a prima facie case had not been made out against the defendant, and the motion for a nonsuit should have been granted. The judgment will be reversed, and the cause remanded, with instructions to grant such motion and dismiss the action.

MECHANICS' LIENS CHANGE IN LAW EFFECTNOTICE OF CLAIM-NAME OF EMPLOYER -OWNER OF PROPERTY.

1. The provision of the lien act of 1893, that all actions to enforce liens for labor and materials "now pending shall be proceeded with under the law as it exists at the time this act takes effect," does not require actions subsequently brought, to enforce liens for labor and materials previously furnished, to be proceeded with under the previous law.

2. Under the provision of the lien act of 1893, allowing claimants to join in the enforcement of their liens, the joint notice of two persons claiming separate liens is valid.

3. An allegation in the notice of a claim that the labor was performed and materials furnished at the request of a person named, who was at the time "the foreman or superintendent of" the defendant, "and the person having charge of said work," sufficiently complies with the statutory requirement that such notice shall state "the name of the person by whom the labor was employed."

4. A notice of lien claim, alleging that the name of the owner of the property is J., and that one S. is owner of the ground on which the property is located, and setting forth a leasehold interest in J., sufficiently complies with the statutory requirement that the notice shall give the name of the reputed owner of the premises, though S. is not the owner of the land.

5. A notice which states that the labor and materials were furnished "at the special instance and request of" the defendant company, "acting therein by A. J., its president," sufficiently names the person with whom the contract was made, and proof that the employing was done by another member of the defendant company will not affect the lien.

Appeal from superior court, King county; J. W. Langley, Judge.

Action by Paul Hopkins and William

Strohl against the Jamieson-Dixon Mill Company, a corporation, and others, to foreclose seven material and labor liens. Judgment for plaintiffs, and defendant J. M. Arthur & Co., claiming as owner of the machinery and mortgagee of the interest of the JamiesonDixon Mill Company in the buildings and land, appeals. Affirmed.

Greene & Turner, for appellant. H. B. Slauson, for respondents Hopkins and Strohl. Shank & Smith, for respondents McMaster & Potts. Jenner, Legg & Williams, for intervener Stimson Mill Company.

DUNBAR, J. This is an action in equity to foreclose seven material and labor liens upon a shingle mill and dry house. The lien claimants are respondents Hopkins, Strohl, McMaster, Potts, Seattle Brick & Tile Company, Galt Bros. & Co., and Stimson Mill Company. Jamieson-Dixon Mill Company owned the building and a leasehold interest in the land, subject to the claims of appellant, J. M. Arthur & Co. This latter company claimed to own the machinery, and is also the holder of certain notes secured by a mortgage upon all the estate and interest of the Jamieson-Dixon Mill Company in the buildings, machinery, and land. Upon the trial, plaintiffs having introduced certain proofs and rested, appellant moved, by separate motions addressed to each claimant, to each cause of action, that said claims and causes of action, and each of them, be dismissed, and for a nonsuit against each, on certain specified grounds, each of which motions was denied. The work and materials for which these liens were claimed were performed and furnished prior to the time the lien act of 1893 went into effect, but the actions were brought subsequent to that time; so that the first question to be determined in the investigation of this case is, does the law of 1893 or do the prior acts control the procedure in the foreclosure of these liens? If it is concluded that the law of 1893 controls, then many of the objections raised by the appellant need not be discussed. The act of 1893, entitled "An act creating and providing for the enforcement of liens for labor and material," seems to be an independent code on the subject embraced in the title of the act, defining "liens" and making full provision for their enforcement; but the last section of the act is as follows: "All rights acquired under any existing law of this state are hereby preserved and all actions now pending shall be proceeded with under the law as it exists at the time this act shall take effect. All acts or parts of acts in conflict with the provisions of this act are hereby repealed." It is conceded, and must be under the ruling of this court in Garneau v. Mill Co., 8 Wash. 467, 36 Pac. 463, that the right to a lien, when the labor had been performed, was preserved by section 19 just quoted. It is, however, insisted by appel

lant that, while the right to the lien may be preserved, the mode of enforcing the lien is the mode prescribed by the act repealed, or the act which was in force at the time the labor was performed or the materials furnished; that the provisions of the law, so far as the act of 1893 is concerned, were prospective, and, had it not been for the saving provisions of section 19, these rights themselves would have been lost; and that, consequently, the provisions of the new act for enforcing the liens do not apply to any liens the right to which accrued before the passage of the act. It does not seem to us that this contention can be sustained. The new act provides that "all actions now pending shall be proceeded with under the law as it exists at the time this act shall take effect"; meaning, of course, the old law. Had it been the intention that all liens which were in existence prior to the passage of the act of 1893 should be enforced under the provisions of the old law, it doubtless would have so expressed it; but it has seen fit to restrict the cases which shall proceed under the old law to actions which were already pending at the time the new law went into effect, not actions where the right of action had accrued by reason of the furnishing of labor or material, but to cases where the enforcement of those rights had already been commenced by action. Under the ordinary rule of construction, that the expression of one excludes the other, it cannot be held that the legislature intended that any actions should be proceeded with under the old law except actions already commenced, according to its expressed terms. The general proposition is laid down in section 24, Phil. Mech. Liens (2d Ed.), that "the rights of parties under mechanic's lien laws are to be ascertained and fixed by the law in force when the contract was made; but such rights are to be established and enforced by the law existing at the bringing of the suit." This general prop⚫osition exactly meets the requirements of this case, and, while it is conceded by the appellant. it urges that the same author, in the same section, announces the further rule that "when, however, a new lien law is entirely prospective in its operation, prior cases must be construed according to the acts in force when the lens accrued." An investigation of the cases cited in support of this proposition, however, convinces us that it in no way conflicts with the proposition first announced, but that it has reference to rights, and not remedies. In other words, that, where a right existed under the old law,-and most of the cases are with reference to questions of limitation,-the right would not be curtailed by the provisions of the new law. Church v. Davis, 9 Watts, 304, was one of the cases cited to sustain the text. The opinion is very brief, the court simply holding that, where a time was given for enforcing the lien, a new statute, which was prospective in its operation, did not affect the

time provided by the old law. This rule does not go beyond the holding of this court in the case of Garneau v. Mill Co., supra.

This is substantially what is decided in the Minnesota cases cited by appellant. It seems that according to the opinion in the case of Nelson v. Sykes, 44 Minn. 68, 46 N. W. 207, section 19 of the new law (Laws Minn. 1889, c. 200) provided that the new act should not affect any rights existing or suits pending when the new act should take effect, and provided, further, that proceedings taken to enforce liens after the new act should take effect should conform, as far as practicable, to the provisions of the new act; and the court, in passing upon the case, where the question involved was, as in the case at bar, a question of limitation, said, after quoting the statute as above noticed: "And so careful was the legislature to avoid touching prior liens that pending suits to enforce such liens are not to be affected, but are to go on, of course, according to the procedure under the prior law; and even future suits to enforce such prior liens are not required to conform, except so far as practicable, to the procedure established by the new law. In view of the exceeding care shown by the legislature in these provisos to avoid affecting existing rights, it is impossible to conclude that it intended to cut down the time allowed by the prior law to record the statement, for the purpose of preserving and continuing the lien from six months to ninety days." It will be seen that our statute makes no provision, as did the Minnesota statute, that such prior liens are not required to conform, except so far as practicable, to the procedure established by the new law, and that is really the provision upon which this case and the succeeding cases from Minnesota cited by appellant were based. The author, Phillips, however, after laying down the rule which we have just mentioned, proceeds in conformity with the proposition first announced by him: "But where a new law provided for a lien and its enforcement, and repealed the previous law. providing that 'rights acquired and liabilities incurred under the previous law shall not be affected by the repeal thereof,' a lien growing out of a contract entered into before the passage of the later act, but not completed until after it took effect, should be prosecuted under the new act." This is substantially the provision of the act of 1893, viz. that "all rights acquired under any existing law of this state are hereby preserved." This text is supported by Turney v. Saunders, 5 Ill. 527. The author, continuing, says: "A contract was made and materials furnished while the lien law was in force, but notice of lien was not filed until a repeal of this law by a later statute, which provided a saving for all liens then existing. All subsequent acts and proceedings relating to the lien or its enforcement were nevertheless held to be governed by the re

pealing act." This seems to be exactly on a level with the case at bar, and in support of the text is cited McCrea v. Craig, 23 Cal. 522. It is insisted by the appellant that, while this case seems to sustain respondents' contention, the probabilities are that it was based upon a different statute from ours; but an examination of the case itself convinces us that the statutes were substantially the same. In fact, the statute cited by the court is, if anything, stronger in favor of the theory that the lien should be prosecuted under the old law than is our statute. The provision of the new act in California was: "Nothing contained in this act shall be deemed to apply to or affect any lien heretofore acquired." St. 1862, p. 390. Referring to this provision, the court in that case said: "The evident intention of section

24 * * * was to save and preserve to the claimants all rights and liens acquired under the pre-existing laws, which were then repealed, but which, but for such saving clause, would have been liable to be lost by such repeal. * After the new stat

ute went into effect, all subsequent acts and proceedings relating to the lien or its enforcement were governed by, and must have been in accordance with, its provisions." And this, it seems to us, is the reasonable construction. Otherwise there would be two procedures for the enforcement of liens at the same time,-a portion of them proceeding under the old act, and a portion under the new,-a condition in the practice which cannot be justified by anything but the plain provisions of the law authorizing it.

In investigating these liens, then, with reference to the provisions of the new law, viz. the law of 1893, we will briefly notice the special liens. It may be stated here that the lien of the Stimson Mill Company has by stipulation been conceded and a settlement arrived at, so that that case is not now before us. The liens of Paul Hopkins and William Strohl are combined in one. The appellant objects to these liens: (1) That the notice is not such as is provided by law, because it is the joint notice of two persons claiming separate liens; (2) that the relation of the person employing claimants is not affirmatively charged; (3) that the lien contained no statement of the terms of Hopkins' contract; (4) that Hopkins' claim is partly for labor furnished, as distinguished from labor performed,-that is, it is a claim for labor of third persons who were enployés of Hopkins; (5) that Strohl's claim is based entirely upon the reasonable value of his labor, yet there is absolutely no proof of the reasonable value of the labor; (6) that both Hopkins' and Strohl's liens are bad, because they fail to state the owner of the ground, and that they say John Smith, while it is admitted that the Sandersons are the real owners. In regard to the first objection, the statute specially provides that any number of v.39P.no.7-52

claimants may join in the same claim. The provisions of the act are simple, viz.: "The claim shall state as nearly as may be the time of commencement and cessation of performing the labor and furnishing the material." That is done in this lien notice. "The name of the person by whom the la borer was employed." The allegation in this notice of claim is "that the name of the person at whose request claimants performed and furnished labor and furnished materials was John McMaster, and he was at the time thereof the foreman or superintendent of said Jamieson-Dixon Mill Company, or person having charge of said work"; and we think the statute is fully complied with, so far as this objection is concerned. "A description of the property to be charged" is another essential. There seems to be no objection to the description in this case. "The name of the owner or reputed owner, if known; and, if not known, that fact should be mentioned." This notice of claim alleges that "the name of the owner and reputed owner of such premises is, and at all times mentioned herein was, Jamieson-Dixon Mill Company, and that one John Smith is owner of the ground on which said plant is located"; setting forth a leasehold interest of the Jamieson-Dixon Mill Company. It seems to us that this is a sensible compliance with the provisions of the statute. It will not destroy the lien claim because the claimant was mistaken as to who the owner of the realty was, as it eventuated in this case. It was not a mistake that misled any one to his damage in any particular. The signing and verification is the remaining requirement of the statute. Under the new statute, notice is not required to state the terms of the contract, and we are inclined to think that, if it was, the terms of the contract are sufficiently stated. This court has held that one cannot enforce a lien for the labor of hired men, but we think that the testimony in this case shows, in the case of Hopkins, that it was substantially for furnishing and for his own labor, and it is reasonably shown by the proof that the labor performed and the materials furnished were worth the amount claimed. The objection to the Seattle Brick & Tile Company's lien is that the name of the person by whom the Seattle Brick & Tile Company was employed, and to whom it furnished material, is not set forth in the lien notice, and that the terms and conditions of claimant's contract are not set forth, because the time of payment is not shown; it appearing by the proof that there was an arrangement as to the time of payment, and that the proof shows that in fact Potts did the employing instead of Jamieson. The proof would not affect the sufficiency of these lien claims, and the claim stating that "at the special instance and request of the Jamieson-Dixon Mill Company, acting therein by Andrew Jamieson, its president, it furnished