Opinion of the Court.

of the conditions by it, the land came burdened with the lien upon it in favor of the constructor of the depot, and such lien was therefore superior to the lien of the mortgage.

It is said that in any event the title which finally vested in the Bear Lake Company by virtue of the completion of the work, as claimed by the respondents, relates back to the time when possession of the land over which the right of way existed was first taken, and that such possession was taken by the Bear Lake Company prior to any work being done by either the plaintiff Garland or by the defendants Corey Brothers & Company, and the title thus became subject to the lien of the mortgage before the work was done by the lienors. This doctrine of relation, by which it is claimed that the lien of the mortgage attached to the right of way prior to the lien of the constructor, is a fiction only. It is indulged in for the purpose of thereby cutting off intervening adverse claims of third parties against the right or title set up and acquired by the first possessor. It will not be indulged in for the purpose of thereby effecting an injustice by subjecting the right of way to the prior lien of a mortgage, when the existence of the title to the right of way in the Bear Lake Company was made possible only after and by the labor of the lienors. In such case the actual fact will be considered and not the fiction.

It is also said that the mortgagee occupies a position superior in equity to that of the Corey firm because the mortgage was executed and on record a long time before the firm did any work upon the ditches, and it must have known, or at any rate notice from the record will be imputed to the firm, that the mortgage lien was in existence. The answer to this position is that under the law as above stated, the firm knew that prior to the completion of the work by it, the Bear Lake Company would have no title and the mortgage would not be a lien upon the property, and that when the work was completed the title would pass to the Bear Lake Company burdened with the lien of the firm, and such lien would be superior to that of the mortgage. To one occupying the position of these lienors, the mortgage was not in existence. Upon the same principle the mortgagee would know that it could acquire no lien on

Opinion of the Court.

this property superior to that of the lienors, and that the title to the property created by the lienors would come to the Bear Lake Company burdened with their lien. It is plain that in this light the equity of the lienors is superior to that of the mortgagee, and their lien should, if possible, be preferred.

The general principle upon which the lien of Corey Brothers & Company upon the right of way over the public lands is claimed as being prior to that of the mortgage, also applies to and covers the case of the land procured by the Bear Lake Company from Kerr, and mentioned in the foregoing twentyninth finding of fact. It was a conditional gift by Kerr to the company of the right of way, to take effect and be valid upon the construction of the canal through the lands of Kerr. As to the portion of the land which was obtained by purchase by the Bear Lake Company at various times from individual proprietors after May 1, 1890, the finding is too general upon which to predicate error calling for a reversal of the whole judgment. The party alleging error should clearly show it, and where it is of a kind that ought not to carry a reversal of the whole judgment because of it, he should in that case show the amount of the error and the extent to which it affected the judgment. Here the case is barren of any finding as to the extent of the purchase from private individuals and whether the purchases were made prior to the work being done or after the same had been performed. Interpreting the thirtieth finding of the court upon this subject as being one of fact, we should say the purchase was not fully accomplished nor was the title finally transferred until after the work had been done. The thirtieth finding is as follows: "All the right of way of the Bear Lake and River Company, as described in finding 19, was acquired by said Bear Lake and River Water Works and Irrigation Company after the mechanic's lien of the plaintiff William Garland and the mechanic's lien of the defendants Corey Brothers & Company attached to the same." The appellants criticise this finding as a conclusion of law. It is made by the court as one of fact, and it may be there is some matter of fact mixed with a legal conclusion. At any rate, the whole matter is left in some uncertainty as to the

Opinion of the Court.

exact facts relating to the purchase of the right of way after May 1, 1890, and as to the extent of such purchases from individuals, and as to the conditions upon which the purchases were made.

They may have been made under such circumstances as to bring them directly within the principle of the case last cited. If the lands would be subject to a lien to the same extent as the lands otherwise acquired.

So,

We will not in such case indulge in any presumptions unfavorable to the judgment and for the purpose of reversing it, unless they are natural and probable and such as ought to be drawn from the facts actually found by the court below. We do not find this to be the case here.

As another answer to the claim of Corey Brothers & Company, the appellants assert that if the Bear Lake Company were not the owner of the right of way over or through the public lands or lands of Kerr, or of the other individuals, until after the completion of the work, then of course it was not owner thereof at the time when the contract with Corey Brothers & Company was entered into, and in that case they would be entitled to no lien under the act of March 12, 1890.

The first section of that act provides "that whoever shall do work or furnish materials by contract, express or implied, with the owner of any land, to any amount," shall be entitled to a lien. The same section also provides that for the purposes of the act "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."

We think the Bear Lake Company was such an owner as comes within the meaning of the statute of 1890, providing for a lien. Although without a legal or an equitable title until the work was done, yet the Bear Lake Company, when the work was completed, became such owner, and in the mean time and after the execution of the contract with Corey Brothers & Company and with the plaintiff Garland it occupied such a position with regard to the property as brings it within the equity of the statute for the purpose of the lien for

Opinion of the Court.

work done, and we think such lien when the work was com pleted and the statement of claim filed was superior to the lien of the mortgage.

Our conclusion is that the whole judgment should be

Affirmed.

AMERICAN ROAD MACHINE COMPANY v. PENNOCK AND SHARP COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

No. 27. Argued March 30, 31, 1896. Decided October 19, 1896.

Letters patent No. 331,920, issued to George W. Taft, December 8, 1885, for a machine for making, repairing and cleaning roads, are void, if not for anticipation, for want of invention in the patented machine.

IN equity. Decree dismissing the bill. Plaintiffs appealed. The case is stated in the opinion.

Mr. Frederick P. Fish for appellant. Mr. W. K. Richardson was on his brief.

Mr. L. L. Bond for appellees. Mr. A. H. Adams, Mr. C. E. Pickard and Mr. J. L. Jackson were on his brief.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

This was a bill for infringement of claims four, ten, eleven and thirteen of letters patent No. 331,920, issued to George W. Taft, December 8, 1885, for a "machine for making, repairing and cleaning roads."

The defences were want of patentable novelty; anticipation; and non-infringement. On hearing, the Circuit Court, held by Judge Butler, entered a decree dismissing the bill. 45 Fed. Rep. 252.

Opinion of the Court.

The application was filed May 6, 1885, and the specification declared

"The objects of my present invention are to provide an efficient and convenient stiff-angled' or non-reversible roadmachine in which the ends of the blade are positively sustained against the working strain, while permitted vertical adjustment by means of push-bars extending from the rear of the machine to the back of the blade; also, to provide in a non-reversible road-machine a vertically-swinging thrust-frame and push-bar arrangement that will permit the required adjustments of the scraper in relation to the plane of the road; also, to provide in a road-machine a hand-wheel operating device for imparting motion to the blade-elevating mechanism, whereby the respective ends of the blade can be raised and depressed in a quick, easy, and convenient manner; also, to provide an improved lifting mechanism for elevating and depressing the blade; also, to afford facilities in a road-machine, in connection with the hand-wheel operating devices, of a brake or stop device for retaining the hand-wheel, lifting mechanism, and blade at position of adjustment."

Then followed the drawings and the description, omitting a part of which, the specification thus continued:

"The front end of the blade D is suspended by a bar or link G from the arm of a lever H that is arranged along the side of the machine and fulcrumed at h on a support A3 that projects from the carriage frame. The rear arm of said lever is provided with a gear segment H1 that meshes with an actuating pinion I, by which the arm of the lever may be moved up and down for raising and depressing the front end of the lever and blade. The rear end of the blade is connected by a link G1 to a vertically sliding rack J that meshes with an actuating pinion I1 and is guided by a flanged friction roll K pivoted on a suitable bracket or support connected to the carriage frame A. The pinion I that operates the lever I may be provided with flanges i 1 for embracing the sides of the internally toothed segment H1 and thus serving to guide and retain said segment and its lever H in proper relation therewith as it is moved up and down by the rotation of the hand-wheel M.