the claimant shall give the "name of the owner, or reputed owner, if known," implies that, if he does not know the name of the owner, he may state this fact, and perfect his lien without naming an owner; and also that, if in good faith he gives the name of a reputed owner, he will not lose his lien if it afterwards appears that some other person was the owner.

Section 334.

(In former editions Section 334 applied to the allowance of attorney's fees, as did also Section 313; but as the Supreme Court has declared the law allowing attorney's fees unconstitutional and void, Section 334 is omitted from the Eighth Edition.)

Section 335.—DUTY OF OWNER UPON RECEIVING NOTICE OF MATERIAL-MAN'S CLAIM.-Whether a building contract is recorded or not, if proper notice is given to the owner by a material-man of materials furnished by him to the contractor, it is the duty of the owner to withhold from the contractor sufficient money to pay the claim, if it is then due or afterwards becomes due.

Section 336. · - PRIORITY OF MATERIAL-MAN'S CLAIM OVER MORTGAGE.-The lien of a material-man for lumber furnished for a dwelling will take precedence of a mortgage on the land executed immediately upon a conveyance thereof, but after the time when the materials were commenced to be furnished, notwithstanding the mortgage was given for the purchase price of the land.

PATENTED

Section 337. MINING GROUND LAND.-A lien for work and labor may be taken upon. mining ground owned by a patentee of the United States. The words "mining claim" in the statute include "mining ground" and all "mines," whether the title is perfect or But the lien will not extend to adjacent land which is not mineral in its character. The words "mining claim,"

not.

as used in the law, have no reference to the different stages in the acquisition of the Government title. It includes all mines where no patent has been issued, as in the case of a mining claim in its strict sense, and also where the patent has issued.

Section 338.-APPOINTMENT OF PAINTER AS KEEPER.—The appointment by the owner of a building of a painter as keeper, and the fact that he lives in it while painting it, after the contractor has abandoned the work, does not constitute an "occupation" or "acceptance" of the building by the owner within the meaning of the law.

Section 339.-MATERIALS MUST BE EXPRESSLY FURNISHED FOR STRUCTURE CHARGED WITH LIEN. In order to enforce the lien of a material-man against a building or structure, the materials must not only have been used in the construction of the building, but they must have been, by the express terms of the contract, furnished for the particular building on which the lien is claimed.

Section 340.-ASSIGNMENT OF MECHANIC'S LIEN. -A mechanic's lien can be assigned, after the claim of lien has been filed for record, but not before. Before the claim of lien has been filed for record, the right to the lien is a mere personal privilege, which the laborer, mechanic, or material-man may exercise or not, as he sees fit; hence it is not the subject of assignment. But after the claim of lien has been filed for record, it can be assigned, and the assignee will have all the rights of the original holder of the lien.

Section 340a.-IF BUILDING IS DESTROYED BY FIRE, NO LIEN CAN AFTERWARDS BE FILED.— Where a building in course of construction is destroyed by fire, without any fault of the owner, before any mechanic's

lien has been filed thereon, the party who furnished materials for the building, or who performed labor upon it, can have no lien upon the land upon which the building was being constructed. The benefit conferred upon the owner, by placing the labor and materials in his building, is the true consideration in law for conferring the right of lien upon the parties furnishing such labor and materials. It cannot be said that this consideration exists, where the building is destroyed before completion and before delivery to the owner. In such case, the owner has not derived and can never derive any benefit from the labor and materials furnished. (Decided by the Supreme Court of California in the case of Humboldt Lumber Mill Company vs. Edward Crisp, which decision is printed in Volume 29, California Decisions, page 629.)

Section 340b.-LIEN FOR POWER SUPPLIED.-All persons supplying power by means of teams, wagons, vehicles, implements, or appliances, used either immediately in or upon the construction, alteration, addition to, or repair, either in whole or in part, of any of the improvements or works, mentioned in Section 285, or used in the immediate transportation of the materials furnished for any of said purposes and actually used therefor, have a lien for such power supplied, of the same character and effect, and to be enforced in the same way as that granted to persons furnishing materials. The liens provided for by this section rank second to liens for performing manual labor (or shall be of the same rank and entitled to be treated as the equivalent of liens for materials furnished), and the rank of such liens. must be so declared by the court.

Act of the Legislature, approved April 19, 1909.

Section 340c.-LIEN FOR WORK DONE BY ORDER OF HEALTH OFFICER.-A law passed in 1909 provides as follows:

"Any health officer or governing board of any city, town or sanitary district, having served written notice upon the owner or reputed owner of real estate upon which there is a dwelling house, and such owner or reputed owner, after thirty days, having refused, neglected or failed to connect such dwelling house, together with all toilets, sinks, and other plumbing therein, properly vented, and in a sanitary manner, with the adjoining street sewer, may construct the same at a reasonable cost, and the person doing said work at the request of such health officer or governing board has a lien upon said real estate for his work done and materials furnished."

Act of the Legislature, approved April 19, 1909.

Architects

Section 341.-COMPENSATION OF ARCHITECT.The compensation of an architect who draws plans and specifications is left to an agreement between himself and his employer. But if there is no agreement as to what is to be paid for the architect's work, the law will allow him a reasonable compensation for his services. What is a reasonable compensation will depend upon the character of the work he has done, and will be determined by the knowledge and experience of persons skilled in that kind of work. Custom may also enter into the question of the architect's compensation, as where he has superintended. the construction of the building, and it is the local custom to pay architects so much for such service; in which case it will be presumed that his services of like character were worth the customary compensation, unless some fact is shown which makes these services worth more or less than the customary rate.

Section 342.-ARCHITECT'S LIEN.-An architect has a lien on the building for his pay, provided he superintends the erection of the building. He must, to enforce his lien, file the same claim of lien in the office of the County

Recorder as is required of laborers, mechanics, and materialmen, referred to in preceding Sections.

Code of Civil Procedure, Section 1183.

LIEN

Section 343.-ARCHITECT CANNOT FILE AGAINST PUBLIC BUILDING.-If an architect prepares plans and specifications for a public building, such as a Court House, Jail, City Hall, Hall of Records, or School House, he cannot file a lien against any such property, and he must look only to the public funds provided by law for such public improvements. Justice Temple, in the Supreme Court of California, in the case of Mayrhofer against the Board of Education of San Diego, in which case it was decided that in California no lien will be allowed against a public building, stated the reason thus: "The claim is made that public buildings are included both in the word 'property,' used in the Constitution, and in the phrase 'any building,' used in the Code, and therefore it must necessarily follow that mechanics and material-men are, by these provisions, given a right to a lien upon such buildings. But this ignores the rule of statutory construction, that the State is not bound by general words in a statute, which would operate to trench upon its sovereign rights, injuriously affect its capacity to perform its functions, or establish a right of action against it. The Government was created and shaped by the Constitution. It is not an end in itself, but a mere instrumentality for public services. Its powers and functions exist only for the people One of its functions is to enact laws for the government of the inhabitants within its limits, thereby affording them protection and advancing their general welfare. The property it holds is simply to enable it to perform the services required of it. It is as much devoted to public use as are the streets and highways, though in a different way. Instead of being the natural and obvious conclusion, that a general law providing remedies for private individuals was intended to enable a creditor of the State to seize this