Argument for Appellants. they asked for a decree enforcing their lien as a prior incumbrance to that of the mortgage upon the property of the Bear Lake Company. 1 The Bear Lake Company set up the same facts as a defence against the plaintiff's cause of action that were alleged by the Mortgage Trust Company, and it answered the claim of Corey Brothers & Company by alleging that the mortgage to the Mortgage Trust Company had been executed and duly recorded, and was in existence long before and at the time of the execution of the agreement which Corey Brothers & Company made with the Bear Lake Company, and that, therefore, the lien of Corey Brothers & Company was subsequent and subject to the lien of the mortgage upon the after-acquired property of the Bear Lake Company. No question arises with reference to the other defendants. The case came on for trial upon the issues thus found, and the court, after hearing the evidence, gave judgment in favor of plaintiff and of Corey Brothers & Company establishing their liens, respectively, upon an equality, and making them prior and superior to the lien of the Mortgage Trust Company by reason of its mortgage, and decreeing the sale of the property to satisfy such liens. Garland v. Bear Lake Irrigation Co., 9 Utah, 350. Mr. John F. Dillon, (with whom was Mr. Harry Hubbard and Mr. Henry M. Beardsley on the brief,) for appellants. I. As to Garland's claim. (a) Whatever right to a lien and remedy Garland may have had, at least as against the Jarvis-Conklin Mortgage Trust Company, existed only under §§ 3806 to 3820 inclusive of the Compiled Laws of Utah, 1888. Those statutes required him to bring his action within ninety days from the time of filing his claim for a lien. He did not bring his action until long after the ninety days had expired, and thus permitted his right and remedy to lapse, and neglected to obtain a lien. (b) He can have no lien under the act of March 12, 1890, prior to the lien. of the mortgage. The mortgage was made Argument for Appellants. October 1, 1889. It was recorded in November and December, 1889, and February, 1890. The mortgage, therefore, was made and recorded, and was an existing lien on March 12, 1890. It is clear, therefore, that the act of March 12, 1890, could not displace this existing lien of the mortgage or give any other lien priority over it. If, therefore, Garland looks to the act of March 12, 1890, for his lien, he must fail, for that act could not give him any lien prior to the lien of the mortgage. Wabash & Erie Canal Co. v. Beers, 2 Black, 448; Murray v. Gibson, 15 How. 421; United States v. IIeth, 3 Cranch, 399; McEwen v. Den, 24 How. 242. It follows, therefore, that for the labor and material furnished by Garland prior to March 12, 1890, he can have no lien by virtue of the act of that date, and that the mortgage to the Jarvis-Conklin Mortgage Trust Company is prior to any lien which is or can be given to him by the act of March 12, 1890, whether it be for work done prior to March 12, 1890, or for work done after that date. In other words, if the right of Garland to a lien and a remedy therefor depend upon the act of March 12, 1890, he can have no lien prior to the mortgage. The principle of law is well settled that in case a statute. creates a right or liability not known to the common law, and provides a remedy for the enforcement of such right or liability, and limits the time within which the remedy must be pursued, the remedy forms a part of the right or liability and must be pursued within the time prescribed or the right and remedy are both lost. Boyd v. Clark, 8 Fed. Rep. 849; Finnell v. Southern Kansas Railway, 33 Fed. Rep. 427; Halsey v. McLean, 12 Allen, 438; The Harrisburg, 119 U. S. 199. It is also well settled law that in case a repealing statute provides that the right and the remedy under the statute repealed shall not be affected, the repeal leaves both the right and the remedy unaffected, and any person in order to avail himself of the right must pursue the remedy prescribed, and within the time prescribed by the repealed statute. Wilkerson v. Hudson, 71 Mississippi, 130; Cochran v. Taylor, 13 Ohio St. 382; Gilleland v. Schuyler, 9 Kansas, 569; Wright Argument for Appellants. v. Oakley, 5 Met. (Mass.) 400; Fitzpatrick v. Boylan, 57 N. Y. 433. II. As to Corey Brothers & Company's claim. Corey Brothers & Company have no lien prior to the mortgage for the reason that their contract was not made until May 1, 1890, and they did not begin work until after that time; whereas the mortgage to the Jarvis-Conklin Mortgage Trust Company was made October 1, 1889, and recorded in November and December, 1889, and February, 1890: The Supreme Court of Utah was mistaken both as to the facts and as to the application of law. The attorney for the JarvisConklin Mortgage Trust Company excepted to finding 29 as follows: "The court erred as to finding of fact 29, for the reason that there is no evidence in this case upon which to base the said facts there stated, nor any one of them. The evidence does not support such finding, and there is no pleading upon which to base the same." It is well settled that a mortgage can be made of afteracquired property and that the mortgage thus made and recorded has priority over any lien which is subsequent in point of time. Galveston Railroad v. Cowdrey, 11 Wall. 459; Tailby v. Official Receiver, 13 App. Cas. 523; Holroyd v. Marshall, 10 H. L. Cas. 191; Pennock v. Coe, 23 How. 117; McCaffrey v. Woodin, 65 N. Y. 459; Phillips v. Phillips, 4 DeG., F. & J. 208. The theory of the Utah court that, although the mortgage covered after-acquired property, yet the parts of the property on which Corey Brothers & Company did their work did not come into existence until such labor was performed, and that therefore they were entitled to a lien prior to the mortgage, is not tenable, for the reason that the equity of the mortgagee is at least equal to that of Corey Brothers & Company, and their mortgage was long prior in time. The mortgage was made. in October, 1889, and recorded in November and December, 1889, and February, 1890, and bonds were issued and large sums of money advanced under the mortgage, including sums which went to pay Garland for his work, at least amounting before May 1, 1890, to $386,318.98, all which was long prior Argument for Appellants. to May 1, 1890, when Corey Brothers & Company began to perform their labor. This prior making of the mortgage and actual advancing of the moneys created an equity, which was, to say the least, equal to that of Corey Brothers & Company. The Bear Lake Company had title to water rights and rights of way by appropriation long before the contract with Corey Brothers & Company. The court, however, is clearly in error in supposing that as to government land the Bear Lake Company did not have property rights in their canal before the work was performed thereon by Corey Brothers & Company. Long before Corey Brothers & Company made their contract or did any work the company had begun the construction of its canal. Garland, who performed the largest part of the labor in constructing the canal, began his work so long prior thereto as August 31, 1889. The route of the canal had been selected and work had been done thereon by Garland long prior to May 1, 1890. The Bear Lake Company were clearly the owners before May 1, 1890, of all parts of the canal on which work had thus been done prior to that date, and on those parts clearly Corey Brothers & Company were, even on the theories advanced by the Supreme Court of Utah, entitled to no lien. In the case of Sullivan v. Northern Spy Mining Co., 11 Utah, 438, a question arose under Rev. Stat. § 2339, whether in case a person entered upon the public lands of the United States and dug a well, the right of such person to the use of the waters of such well thus acquired by possession was superior to the right of the person who afterwards purchased the land from the United States. The question turned on whether the right to enter upon land for the purpose of digging a well was a right recognized and acknowledged by the "local customs, laws and decisions of courts" of Utah; and the Supreme Court of the Territory of Utah held that it was, and that the person who thus entered upon the land and dug the well had a right to the use of its waters prior to the right of the person who afterwards purchased the land. The court held that the provisions of § 2780 of the Compiled Laws of Utah of 1888 applied. It is clear, therefore, that, "under the laws and cus Argument for Appellants. toms and decisions of the courts of Utah," the Bear Lake Company acquired a property right in its water rights and right of way long prior to May 1, 1890. The following authorities show that in the case of an appropriation of water or water rights, or rights of way therefor the ditch or canal or other work need not be fully completed in order to secure the priority given and recognized by Rev. Stat. 2339 and by the laws and customs of the Pacific States. It is sufficient if the work has been begun and is being prosecuted with due diligence. Kelly v. Natoma Water Company, 6 California, 105; Dyke v. Caldwell, 18 Pac. Rep. 276; Irwin V. Strait, 18 Nevada, 436. If the Bear Lake Company was not the owner, then Corey Brothers & Company had no right to the lien under the provisions of the act of March 12, 1890. In the case of Nelson v. Clerf, 4 Washington, 405, the court held that under the statute of Washington, which, in this respect, is not substantially different from the statute of Utah, a mechanic's lien cannot be enforced against a working company for the construction of its ditch, unless it appears that the company owns or has an interest in the land through which the ditch is constructed. See Tritch v. Norton, 10 Colorado, 337, to the same effect. Corey Brothers & Company entered upon the land and did their work under and in privity with the Bear Lake Company which had long prior thereto made and recorded its mortgage to the Jarvis-Conklin Mortgage Trust Company. Corey Brothers & Company therefore entered with full notice of the mortgage, and, being in privity with the Bear Lake Company, are bound by the estoppel created by the mortgage. Even on the theory advanced by the Supreme Court of Utah, that if the lands over which the Bear Lake Company constructed its canal were public lands, and if, further, the Bear Lake Company did not acquire title to such public lands until after Corey Brothers & Company began their work, still the decision of the court was erroneous, for the reason that this theory would apply only in the case of lands over which the canal was constructed which were public lands, and on which |