the respondent's alleged prescriptive right commenced was in December, 1891. This falls far short of the period of time required to entitle respondent to a right of way over appellant's land by prescription, and he must therefore fail upon this ground.

There is another reason why respondent cannot be decreed a right of way over appellant's land. As we have pointed out, the roadway was changed in 1900. This change broke the continuity of the use by respondent. Jones, in his excellent work on Easements, in section 295, states the law upon this point as follows:

"A prescriptive right of way cannot be acquired by tacking together two distinct periods of use of two separate ways, though one was abandoned for the other with the consent of the landowner, and the two periods together would amount to the prescriptive time requisite to give a prescriptive right of way. It is essential that the use should relate strictly to the identical way over which the right is claimed. A way imports a right of passing in a particular line, and not everywhere, over the land upon which the right may be claimed."

This does not mean that a person using the right of way may not deviate at all from the traveled rut or track, to the extent, at least, that this may become necessary in a reasonable use of the right of way; but it does mean that the claimant may not abandon one track or right of way and adopt another. In Kurtz v. Hoke, 172 Pa. 165, 33 Atl. 549, it is held that a variation of twenty feet from the traveled road is fatal to continuity of use. It is generally held by the courts that a deviation such as occurred in the case at bar destroys the continuity of use required by law. The rule is illustrated and applied in the following cases: Owens v. Crossett, 105 Ill. 354; Bryan v. East St. Louis, 12 Ill. App. 390; Peters v. Little, 95 Ga. 151, 22 S. E. 44; Follendore v. Thomas, 93 Ga. 300, 20 S. E. 329.

The court made a finding to the effect that the change in 1900 and thereafter was made with the consent of appellant. Even though this were fatal to her claim, there is no evidence in the record to support this finding. The most that

the evidence discloses is that after the title had passed to appellant her husband had consented and agreed to the change. The husband denies that, and there is no claim. that appellant, the owner of the land, ever consented, or authorized any one to consent for her, to the changes; but, on the contrary, her testimony is to the effect that she always protested as to the change or changes in the roadway that were made by respondent.

There is some claim made by respondent's counsel that in view that she and her husband permitted respondent to improve his property, and in doing so to pass over the land in question, and permitted him to do certain work and make improvements upon the roadway during all of these years, therefore appellant is estopped from objecting to the use of the right of way by respondent. If it were conceded that the principle of estoppel should be applied to that portion of the right of way as it was used by respondent prior to 1900, there is absolutely nothing upon which an estoppel can be based which would authorize the application of the estoppel to the change that was made in that year. The mere fact that there was a washout in the old road gave respondent no right to change the roadway. If an established right of way may be changed any time it becomes inconvenient for use, or even impassable, then there is no limit to the extent of territory that the claimant of a right of way may appropriate for such use. The mere fact that he has improved his property, and a roadway is both convenient and necessary to its full enjoyment, gives him no right to pass over another's property at will to reach his own. If the old roadway is impassable, and he is cut off from a public road, the law affords him a remedy by which he may again establish ingress and egress to his property; but we know of no law that permits this by simply changing the route of travel over another's land without compensation, and upon the sole ground that it is both convenient and necessary to do this in order to lose no part of the labor or expense involved in establishing the old and now impassable roadway.

Upon the hearing the parties used a map or plat from

which, the evidence indicates, the changes in the road that were made in the year 1900 and thereafter are shown. This map is not in the record. We are unable, therefore, to state what portion of the original road, if any, over appellant's land the respondent has a right to maintain. We speak of this because it appears from the evidence, as we understand it, that there is a certain portion of the original road to the use of which appellant does not object. If we are right in this, then there is no reason why respondent should not have the privilege of using such portion; but he cannot be permitted, under the evidence, to use that portion of the roadway which was established in 1900, or thereafter, without the express consent of appellant. The mere fact that the land over which the right of way is claimed may not be of great value, or that the use of it may be of great benefit to respondent, and of but small inconvenience, if any, to appellant, cannot affect the result. The question, and the only question, is: Has the respondent established a legal right to the right of way over appellant's land, which he claims, and which the court decreed to him? The uncontroverted facts show that under the law he has not such legal right, and the court, therefore, erred in awarding it to him. Nor does the evidence authorize us to affirm the decree upon equitable grounds, for the reasons heretofore pointed out.

The judgment is therefore reversed, with directions to the district court to proceed with the case in accordance with the views expressed in this opinion; appellant to recover costs.

MCCARTY, C. J., and STRAUP, J., concur.

BELNAP v. CONDON et al.

No. 1945. Decided August 4, 1908 (97 Pac. 111).

1. MECHANICS' LIENS-RIGHT TO LIEN-CONSENT OF OWNER-AUTHORITY OF VENDEE TO BIND VENDOR. Comp. Laws 1907, sec. 1372, provides that mechanics, materialmen, etc., shall have liens on the lands of the owner for which labor or material is furnished or service is rendered, whether at the instance of the owner or of any other person acting by his authority or under him as agent, contractor, or otherwise. Held, that the interest of the vendor of land in possession of the vendee under contract of sale was not subject to a materialman's lien for materials furnished to the vendee for the construction of a building thereon,. unless the vendee had express or implied authority from the vendor to bind her interest, or there was subsequent ratification of the vendee's acts by such vendor.1

2. SAME AGENCY-EVIDENCE. Where it is sought to charge a vendor's interest in land with a materialman's lien for materials furnished to the vendee to construct a building on the land, the relation of principal and agent between the vendor and vendee may be shown by any parol agreement between them from which the authority given by the vendor to the vendee to improve the property may directly appear or be inferred.

3. SAME

EXPECTATION-PERMISSION TO IMPROVE. Mere expectation by a vendor that the vendee in possession will make improvements on the land, or mere permission to the vendee to make improvements, or mere knowledge or acquiescence therein, is insufficient to charge the vendor's interest with a lien for materials furnished the vendee to make such improvements, under Comp. Laws, 1907, sec. 1372, giving a lien for materials furnished, whether at the instance of the owner, or of any other person acting by his authority or under him, as agent, contractor, or otherwise.

4. SAME CHANGE OF ACCOUNT. Where plaintiff furnished lumber to a vendee of certain land, to be used thereon on the credit of the vendee alone, plaintiff, upon informing himself as to the true state of the title to the land, after having delivered it to the vendee, could not change the account, charged on his books to the vendee, so as to include the vendor therein, without her consent.

'Morrow v. Merritt, 16 Utah 412, 52 Pac. 667.

APPEAL from District Court, Second District; J. A. Howell, Judge.

Suit by Hyrum Belnap against Lizzie Condon and another. From a judgment for plaintiff against defendant F. W. Becker, and in favor of defendant Condon, plaintiff appeals. AFFIRMED.

J. D. Skeen and W. L. Maginnis for appellant.

J. H. Devine and Theo. Maloney for respondents.

APPELLANT'S POINTS.

The authorities fully sustain the doctrine that where a contract of sale requires the vendee to make improvements on the land, the vendor thereby either constitutes the vendee his agent to make the improvements, or contracts that the fee simple title to the land may be bound by a mechanic's lien to pay for the improvements. (20 Am. & Eng. Ency. of Law, 322, 27 Cyc. 61, 34 Cent. Dig. 2171; Boisot on Mechanic's Liens, sec. 305; Henderson v. Connelly, 123 Ill. 98, 14 N. E. 1, 5 Am. St. 490; Paulsen v. Manske, 126 Ill. 72, 9 Am. St. 532; Sheehy v. Fulton, 38 Neb. 691, 41 Am. St. 769; Shapleigh v. Hull [Colo.], 41 Pac. 1108; Hendrie, etc., Co. v. Holy Cross, etc., Co. (Colo.), 68 Pac. 785; Shearer v. Wilder [Kan.], 43 Pac. 224; Hill v. Gill [Minn.], 42 N. W. 294, following Henderson v. Connelly; Bohn Mfg. Co. v. Kountz [Neb.], 46 N. W. 1123; Guiou v. Ryckman [Neb.], 110 N. W. 759; Hickey v. Collom [Minn.], 50 N. W. 918; Althene v. Tarbox, 50 N. W. 1019, 48 Minn. 18.)

FRICK, J.

The appellant instituted this action to foreclose a mechanic's lien. In his complaint he in substance alleges that the respondents were indebted to him in the sum of $218.61 for a balance due for certain materials furnished by him to them at their special instance and request, to be used in the