Furthermore, the evidence which was offered by the appellants and admitted by the court shows that the filing did not precede the service of the notice. That evidence also, without dispute, shows that the notice was served on the 4th day of February, before it was filed, and that it was then taken to the office of the justice for filing, but, owing to the absence of the justice the notice, as matter of fact, was not filed until the next day. Whatever presumptions of law might be indulged from two contemporaneous acts, that the one required first to be done was done first, was entirely dissipated by the evidence offered by appellants, which indisputably showed that the service of the notice was, as matter of fact, first made, and that the notice was then presented for filing, and was filed the day thereafter; but aside from this consideration, the order of filing and service, having heretofore been held to be material, and that the filing must precede the service, and the record of the justice as transmitted to the district court clearly showing that the filing did not precede the service, we think the court, under the ruling of the Snell Case, was bound by that record, and was unauthorized to itself ascertain the fact by hearing evidence dehors the record.

The record of the justice court, as transmitted to the district court, shows that an undertaking on appeal was filed on the 5th day of February. The record does not show that any notice of the filing of the undertaking was given, or that any notice with respect to the undertaking was given or served. The statute provides that "when an undertaking on appeal is filed notice of such filing shall be given to the respondent." In the Peart Case, having under consideration this provision of the statute, we said:

"The contention made by the relator is that the defendant Hendrickson was required to give notice, not of an intention of filing an undertaking, but notice of the filing of an undertaking, that such a notice was not given, and hence the filing of the undertaking must be regarded as no undertaking, and therefore the appeal is ineffectual, and the district court is without jurisdiction. We think the position is well taken. The filing of the undertaking and the serving of a notice of such filing is by statute made a prerequisite to effectuate an appeal."

We there held that, when the undertaking is filed, "notice of such filing" shall be given to the respondent.

2

Again, the appellants in the district court were permitted to show by affidavits, over the objections of the relator, that the undertaking and a notice of the filing of the undertaking were presented to the justice for filing. They did not offer to show, nor was it shown, that a notice of the filing of the undertaking was served on the respondent, or that even a copy of the undertaking was served, or that any kind of a notice with respect to the undertaking was served on or given to the adverse party. What is shown by the affidavits is that an undertaking and a notice of the filing of an undertaking were prepared for service, and that they were presented to the justice court for filing; but it was not shown that a notice of the filing of the undertaking or any notice in respect of the undertaking was served or given. Counsel for appellants, the respondents here in their brief say: "It may also be contended that, in the filing of these documents, another notice that the undertaking had been filed should be given. We see no reason for doing this." It is sufficient reason requir ing it to be done when the statute provides that "notice of such filing shall be given" to the adverse party, and our prior holding that the giving of such a notice is a prerequisite. We are, however, also of the opinion that, under the ruling made in the Snell Case, the court could not properly receive the affidavits or other evidence dehors the record to determine whether or not such notice had been given. The giving of a notice of the filing of the undertaking being a prerequisite, the court must look to the transcript of the record as transmitted to it to ascertain such fact, and unless the record, as transmitted to the court, discloses that notice of such filing was given, the court is without jurisdiction to proceed.

We think the writ ought to issue.

3

It is so ordered. The costs of this proceeding are ordered taxed against Edward Mackey and Mrs. Mackey.

FRICK and MCCARTY, JJ., concur.

POOL v. UTAH COUNTY LIGHT AND POWER COMPANY et al.

No. 2027. Decided November 13, 1909 (105 Pac. 289).

1. WATERS AND WATER COURSES-APPROPRIATION-STATUTORY PROVISIONS. Laws 1903, p. 88, c. 100, regulating the appropriation of water rights, must be liberally construed according to Comp. Laws 1907, section 2489, with a view to effect the object of the statute and to promote justice. (Page 516.)

2. STATUTES-CONSTRUCTION. In construing a particular section of an act, all the provisions of the act as well as its object will be considered, but, if the language is unambiguous, it must ordinarily be given full force and effect. (Page 516.)

3. WATERS AND WATER COURSES APPROPRIATION — FORFEITURE, Where application for an appropriation of water is made to the state engineer according to Laws 1903, pp. 88-100, c. 100, sections 1-42, giving him large discretionary powers with authority to extend the time that he has fixed for completing works required to perfect the appropriation, and work is commenced within the statutory time and prosecuted in good faith and with due diligence, he may extend the time if not beyond the final limit fixed by the statute, although the application therefor is made after the time first fixed by him has expired. (Page 519.)

APPEAL from District Court, Fourth District; Hon. J. E. Booth, Judge.

Action by William H. Pool against the Utah county Light & Power Company, and another.

Judgment for defendants. Plaintiff appealed.

AFFIRMED.

C. S. Varian for appellant.

J. W. N. White cotton and A. J. Evans for respondents.

APPELLANT'S POINTS.

Where a statutory power or jurisdiction is granted, which otherwise does not exist, whether to a court or an officer, the grant is strictly construed, and the mode of procedure prescribed must be strictly pursued. (Burrows v. Kimball, 11 Utah 150; Sutherland Statutory Construction, secs. 454458.) When a statute gives a right or remedy which did not exist at common law, and provides a specific method of enforcing it, the mode of procedure provided by the statute is conclusive, and must be pursued strictly. (26 Am. and Eng. Ency. [2d Ed.], p. 671; Campbellsville Lumber Co. v. Hubbart, C. C. A. 112, Feb. 724.) Suppose that no application or order for extension was made at any time, but that by the law there was jurisdiction to grant an extension after the expiration of time first granted. In such event, no one could safely make application to appropriate any of the water included in the defendant's attempted appropriation, nor make preparations for the construction of works, or the diversion of the water for any purpose, since it could not be known definitely and finally before the expiration of the statutory period that the defendant would not ask for, and procure an extension. This is an apt case for the illustration, since it is alleged in the complaint, and admitted in the answer, that the quantity of water, to-wit: 100 second feet, sought to be appropriated by each party is all of the unappropriated water in the stream. Under settled rules of construction, and with the support of authorities upon other statutes conferring powers in relation to the time of doing acts, employing like language with the one under consideration, we submit that the construction given the statute by the court below is erroneous, and that the state engineer had not the power to extend the time, after the original time granted had expired. It may be noted that the practice in this respect has been changed in the office of the engineer, and extensions are not now granted, after the expiration of the original time prescribed. (Butler v. Lawson, 29 Utah 439; Smith v. Fisher, 3 Utah

24; Elliott v. Whitmore, 10 Utah 253; Rogers v. Traders' Bank, 60 Kan. 855, 55 Pac. 463; Schwartz v. Davis, 74 Pac. 800, 9 Ida. 238; Ferree v. Walker, 54 Kan. 49, 36 Pac. 738; Brown v. Crabtree, 47 Pac. 525; Abel v. Blair, 3 Okla. 399, 41 Pac. 342; Polson v. Pursell, 4 Okla. 93, 46 Pac. 578; Sigmon v. Pool, 49 Pac. 944; In re Clary's Estate, 112 Cal. 292, 44 Pac. 569.)

RESPONDENT'S POINTS.

A diligent search for authorities has failed to disclose any case just like the present, and we are, therefore, left, as it seems, to the analogy of similar cases, and the nearest we have been able to find is the law relating to mining locations. The law is well settled that the facts existing in this case would not work a forfeiture of rights to a mining location. (Rose v. Richmond Mining Co., 17 Nev. 25; Belk v. Meagher, 104 U. S. 279; Snyder on Mines, sec. 572.)

FRICK, J.

This action originated in the District Court of Utah County, and involves the question as to whether the appellant or respondent has the prior right to the use of the waters of American Fork Creek, a stream flowing through Utah County. The district court found the issues in favor of respondent, and entered judgment dismissing the action; hence this appeal.

Respondent's claim to the water arises by virtue of an application made by it under chapter 100, page 88, Laws Utah 1903, entitled "Water Rights and Irrigation," and appellant's claim is based upon his application made under the same act as amended by chapter 108, page 145, Laws Utah 1905. Since the provisions of the two chapters are the same in so far as the rights of the parties to this action are concerned, we shall refer to the act of 1903 only. By this act very important changes for the appropriation and perfecting of rights to the use of public waters of this state were effected. In view that the questions presented for decision