The San Francisco call., 1897-06-02
ATTACKS The LIEN LAW
Supreme Justice Harrison Rem.
ders Very Important
D, c sion.
A Reputed Owner Cannot in Any Way
Place the Land of Another
in ;opsrdy.

Justice Harrison Of the Supreme Court
has handed down a decision relative to
the lien law ss applied to real estate that
is OF great Importance, not only locally,
but to all parts of the State. The prin-
ciple involved is no doubt applicable to
other matters than the one considered.
Justice Harrison attacks one of the prin-
cipal points of the Civil Code bearing
upon liens. His opinion is concurred in
by Justices Temple. Henshaw, McFar-
land, Garoutte and Van Fleet. The case
in question is the Santa Cruz Rock Pave
ment Company, respondents, against
Ellen Lyons and others, appellants, and
the decision of the Superior Court of San
Francisco is reversed. Owing to it's i'm
portance the decision is here gwen in full.
The plaintiff seeks by this action to enforce
mechanics lien on certain real property in
san Francisco belonging to the defendant,
Ellen Lyons, for work done by it in the i'm
provement of the street in front of said prop-
erty. The defendant Ellen is the wife of her
co-deiendant James NJ. Lyons, and the land is
her separate property. The work done by the
plaintiff vas performed under a written con-
tract entered into between it and the defend
ant James, and after lis completion the
pia1ntlh filed claim of lien with the County
Recorder, which 1t now seeks to enforce
against the property. Section 1191, e. c. p,
provides:
Any person who at the request OF the reputed
owner of any lot IN an Incorporated city or lown
grades, fills in or otherwise improves the same or
the street or sidewalk in front OF adjoining the
same or constructs any areas or vaults or cellars
or rooms under said sidewalk, or makes any inn
provement in connection herewith has n lien
upon such lot for his work done and material fur
nished.
Much of the argument herein has been d.
rected 10 the question whether 1t appears
from the report that the defendant James was
the HreDule0 owner of the land in
but in the view taken by US of The foregoing
section 1t is unnecessary TO decide this ques-
tion.
The owner of real property may by his acts
or conduct be estopped from questioning the
acts ct reputed owner of such property, and
may thereby be bound by the acts OF such re-
puted owner. But in the absence of the ele-
ments OF an estoppal he will not be bound by
the unauthorized acls of one who is merely
reputed 10 he the owner of the land, He can
not be deprived of his title to the land, nor
can lien be imposed thereon against his will
py virtue OF any agreement or contract on the
part of one who is merely reputed TO be the
owner of such land, unless he has in
some way held such person out as the
reputed owner with authority to do the
act or make the agreement by which it is
sougnt TO create the lien. 1t IS no more with
IN the constitutional power of the Legislatu ture
10 authorize the reputed owner of a lot or par
Gel OF land to create lien thereon against the
Will OF the real owner tean II would be to
authorize such reputed owner to transfer the
title OF said land; and we hold. ther erefore, thu
% iai as the foregoing section Oh the code
purports 10 authorize the creation of q lien
upon land by virtue of contract for the i'm
proVement of the street adjacent thereto, en-
tered into with one who is only the repu ted
owner OF the land or TO affect the interest of
the real owner therein, 1T is unconstitutional.
There is no evidence before the court tn at
the defendant Ellen gave to her hLs ba nd
any authority to enter into the contract for
the Improvement of the street, and the fl nd
lhgs OF the court that he entered into said con-
tract as ner ostensible agent, and in her be-
hali, Is not sustained Nv the evidence.
Inc plaln'lf also offered evidence tending
10 snow that the defendant Ellen knew of the
WORK while II was being performed, and
neither made objection thereto nor gave any
notlee 10 1t that she would not be responsible
tnerefor, and has argued that by reason there
OF ~ Is entitled to enforce the lien. Section
dlSZ, Z. Z. p, however, limits the right OF
ilen In such cases TO ''every building or other
Improvement mentioned in section 1888" in
the code, and section 1191, which alone pro-
woes lor lien upon lot for the work done
In improving the street in front OF such lot,
contains no provision of this nature.
Ine judgment and order denying a new
trlal are reversed. HARRISON, J.
Thirty colored men and one colored
woman are now DractirinQ law in Ehica on