*547 eration; but we are not now called upon to | 2. Findings of fact or questions of local law determine them. upon which depend a party's right, under U. S. Rev. Stat. § 2339 (U. S. Comp. Stat. 1901, p. 1437), to the protection of vested water rights, are not reviewable in the Supreme Court of the United States on writ of error to a state court. In so far as the provisions of the city ordinance may be claimed to affect the rights and privileges of citizens of Louisiana and of the other states, the plaintiff in error is in no position to raise the question. It is not alleged, nor does it appear, that he is one of the laborers excluded by the ordinance from employment, or that he occupies any representative relation to them. Argued November 10, 1902. Apparently he is one of the preferred class of resident citizens of the city of New Orleans. It is further argued that the ordinance is prejudicial to the property rights of the plaintiff in error, because by confining the right to labor on works of municipal improvement to resident citizens, the cost of such works might thus be increased. [No. 72.] ary 5, 1903. Decided Janu N ERROR to the Supreme Court of the a judgment which affirmed a judgment of condemnation rendered by the District Court of the Fourth Judicial District of that State in a suit to condemn land in the exercise of the right of eminent domain. Dismissed. See same case below, 23 Utah, 22, 63 Pac. 995. Statement by Mr. Justice McKenna: But we think such a consequence is too far fetched and uncertain on which to base judicial action. The plaintiff in error did not raise such a question in time to stay the work in limine. He awaited the completion of the work, and until his property had re-ercise of the right of eminent domain, under ceived the benefits, whatever they were, of the laws of Utah, and was brought in the the improvement. Nor did he, on the trial, district court of the fourth judicial district adduce any evidence from which the court of that state. The complainant in the suit, might have found that the actual cost in defendant in error here, was a corporation the present case was increased by the oper- of Utah. The plaintiff in error was a Coloation of the ordinance. Possibly the effect of rado corporation. Ferguson and Holbrook the ordinance in preferring the labor of resi- were citizens of Utah; Nunn was a citizen dent citizens might tend to increase the cost of Colorado. The bill alleged the corporate of the work, or it might have the opposite character of the complainant, and the neceseffect by inducing outside laborers to become sity of the land for the use of the railroad. resident citizens. But, as we have said, The route of the road was set out, and that such conjectural results are too remote and it would pass over a tract of unsurveyed uncertain to furnish materials for judicial lands of the United States which could not determination. The serious duty of con- be accurately described, but which, when denining state legislation as unconstitution-surveyed, would proximately be parts of the al and void cannot be thrown upon this S.W. of section 27, W. of S.W. of 26. court, except at the suit of parties directly and certainly affected thereby. The judgment of the Supreme Court of Louisiana is affirmed. N.E. of the S.W. section 26, and N.W of the S.E. of section 26, T. 5, S. R. 3, east Salt Lake meridian, and lying in Provo cañon, and along and near Provo river. That prior to plaintiff's survey Ferguson: Mr. Justice Harlan and Mr. Justice had or claimed some possessory right by ocWhite dissent. (187 U. S. 569) cupation of said land or some part thereof, but on account of the land being unsurveyed the number of acres claimed by Ferguson could not be given, but the lands he claimed to occupy, it was alleged on information and belief, commenced at a fence between them and lands below and southeasterly, occupied by A. L. Murphy, and extends northeasterly RAILWAY up the cañon and river, a distance of about 4,800 feet, to a point which by estimation would be the northeast corner of the to state court-Federal question-northwest quarter of the southeast quarter when raised in time-findings of fact of section 26, when the land should be surquestions of local laro. TELLURIDE POWER TRANSMISSION RIO Error v. GRANDE WESTERN 1. The repugnancy to the Federal Constitution of a state statute under which the trial court assumed to try without a jury the questions of fact upon which the rights in controversy depended is not reviewable in the Supreme Court of the United States on writ of error to a state court, where the question first appears in the petition for such writ of error, and the state supreme court did not pass upon the action of the trial court in view of Its unconstitutionality. veyed. It was alleged that the line of the "And on information and belief the plaintiff alleges that the defendants the Telluride 1. See Appeal and Error, vol. 2, Cent. Dig. § 1026; Courts, vol. 13, Cent. Dig. 1080. *571 Power Transmission Company, L. L. Nunn, and L. Holbrook assert and claim some interest in or to said land appropriated by the plaintiff, or in the possessory right to the same or to some easement therein. "That the defendants are the only persons and parties in possession of said land or any part thereof, or claiming any right or title therein or thereto, so far as is known to the plaintiff. "And the plaintiff alleges that it cannot contract for the purchase of said tract of land required for its railroad as aforesaid. That the defendant W. W. Ferguson refuses to sell, alleging that he has contracted to sell to the other defendants or some of them; that the other defendants refuse to sell the same or any easement therein or possessory right thereto on the pretense that they want said land and propose to flow the same for power purposes. And on information and belief the plaintiff alleges that the claimed interest of the defendant Holbrook, if any, is held by him as trustee for the defendants, the Telluride Power Transmission Company and L. L. Nunn." The prayer was for the ascertainment of the extent of occupation by defendants and their damages and the condemnation of a right of way of 100 feet wide on each side of the center line of plaintiff's survey, on and over the land occupied by defendants, or any of them, and for general relief. The Telluride Power Transmission Company and the defendant Nunn petitioned for the removal of the cause to the circuit court of the United States for the district of Utah on the ground of separable controversy. The petition alleged that they were citizens and residents of Colorado, and the plaintiff was a resident and citizen of Utah; that Holbrook had no interest in the controver sy, and that Ferguson had contracted to sell to them the lands involved. The petition was denied. Subsequently said corporation and Nunn filed a certified transcript of the proceedings in the circuit court of the United States for the district of Utah, but on motion of plaintiff's attorney the cause was remanded to the district court of the state. The order remanding was made on the 29th of March, 1897, and a copy thereof filed in the district court, April 29, 1898, the day the trial commenced. surveyed land." Ferguson's location upon certain unsurveyed lands was alleged, with the view of obtaining title thereto as soon as the lands could be entered, and that he had erected improvements thereon and had contracted to sell the same to the power company and Nunn for the purpose of enabling them to "use the same for a reservoir upon which to store water for electrical power, manufacture and agricultural purposes." It was alleged that the power company was a Colorado corporation and its stockholders citizens of the United States, and that it was organized, among other things, "for the purpose of acquiring by purchase, or otherwise, water rights, ways, and power, and to work, develop, and utilize water rights, power, ways, mills, etc., for such business and enterprises as appertain to the same." The adaptability of Provo cañon for sup plying and storing water was alleged, and the utility of furnishing light and electrical power and heat to neighboring industries. That said defendants have been engaged for years in acquiring water rights, and in the year 1894 entered Provo cañon, and had extensive surveys made, and prosecuted the same with diligence; that the greater part of the lands in the cañon were unoccupied and unsurveyed, and of little or no value except for the purposes designed by the defendants; "that defendants began the construction of a flume and made the necessary excavations therefor in order to obtain power with which to aid in the construction of a large dam by which to reservoir and hold back the waters of said river for power and irrigation purposes; that said defendants made the necessary surveys for canals for the purposes aforesaid and surveyed a reservoir, and showed upon the surveys the contour of the line thereof, and prosecuted with due diligence the work necessary for the consunimation of the enterprise entered upon; that in the winter and early spring of 1896 the said defendants vigorously prosecuted said work and expended large sums of money in the execution of said design and purpose; that long prior to 1896 in good faith they entered upon said public unsurveyed lands of the United States with the design and specific purpose of constructing In that court the defendants answered, in said cañon at a point at or near what will Ferguson separately, the other defendants be, when surveyed, as nearly as defendants uniting. The answers need not be quoted. can determine, the southwest quarter of the It is enough to say that they put in issue southeast quarter of section 27, township 5 the allegations of the bill as to the organi- south, range 3 east, a dam by which to reszation and existence of the plaintiff corpo- ervoir and store said surplus waters of ration, its authority to build a railroad up Provo river; that they surveyed said reserProvo cañon, the survey of its line in March, voir, extending the lines of survey up said 1896, and its location. It was alleged "that river from said point to a point at or near certain persons claiming to be the agents of the northeast corner of the northeast quarsaid alleged plaintiff had, during the sum-ter of the southwest quarter of section 7, mer and fall of 1896, ran uncertain and irregular lines up said Provo cañion, cut brush and made slight and unimportant excavations, which, from their character, gave no evidence of any purpose or design upon the part of any person to survey or construct any line of railroad;" and that such line "passed over and into certain tracts of un township 5 south, range 4 east, in Wasatch county, Utah; and said defendants have further located and surveyed the necessary canals connected with said reservoir for the purpose of carrying into effect the enterprise and business entered upon by them; that since the year 1894 as aforesaid, the said defendants have been in the actual posses *574 The allegations of defendants were not only set up in their answers, but were also made the subject of cross bills. sion and occupation of the land in said It was averred that Holbrook had no incañon between said points, and which is interest in the controversy. tended by them as a reservoir, and also other portions of the public domain lying west of said reservoir and in said cañon, except that the claim of defendant Ferguson, lying within said reservoir, has been occupied by said Ferguson as a residence, but defendants allege having paid said Ferguson a large sum of money, and have obtained a contract from him by which he covenants and agrees to convey all his interest in the premises so occupied by him to the said defendants." A jury was empaneled, and under the instructions of the court they were confined to the consideration of compensation and damages. They returned a verdict assessing the value of the strip of land taken by the railroad at $575; damages to the remaining land, $500; cost of fencing, $525.30, and cost of cattle guards, $42.53. Benefits were as There were many instructions asked by defendants which the court refused. They also objected to the instructions which the court gave. Subsequently the court rendered its judgment, in which it found and adjudged as follows: The good faith of the defendants was al-sessed at nothing. leged, and that their possession was open and notorious, and that they with like faith prosecuted their enterprise, and expended therein $50,000, and by reason of their dam they would be able to obtain more than 8,000-horse power, which would be sufficient to supply said Utah county and the towns and cities therein with power for heating, lighting, and manufacturing purposes, and would also be able to supply water for irrigation purposes. The acts of the plaintiff were averred as follows: "This action having come on for hearing before the court, and a jury impaneled to assess compensation and damages, on the 18th day of April, 1898, and having been heard on that and the succeeding day, it is now found and determined that the plaintiff is a railroad corporation as alleged in the complaint and with a franchise to construct and operate lines of railway and telegraph as alleged, including a franchise to construct a line of railroad and telegraph on and over lands described in the complaint and sought to be condemned. "Defendants further aver that said plaintiff some time in the summer of 1896 wrongfully, and for the purpose of annoying the said defendants and interfering with their project and enterprise, came into Provo cañon and ran irregular, indefinite, and devious lines through a portion of said cañon, "That the plaintiff filed a copy of its artipretending that it was the purpose to estab-cles of incorporation and due proof of its lish a railroad therein, and defendants allege organization with the Secretary of the Inte that said lines so run were so irregular and rior, and the same were duly approved by uncertain, so shifting and changing, as to the Secretary on the 27th day of May, 1890, indicate no such purpose; that in two or under the act of Congress of March 3, 1875,1 three points in said cañon various persons granting the right of way to railroad comclaiming to represent plaintiff made slight panies. excavations, but the character of the same was such as to indicate no purpose to construct a railroad or to perform intelligently and with a fixed or settled purpose any work or enterprise. "That the lands sought to be condemned and the adjoining lands are unsurveyed public lands of the United States, and at the time of the beginning of the suit were occupied by William W. Ferguson, who has since died. "That the plaintiff on the 8th day of July, 1896, completed the survey and location of its line of railroad on and over the lands sought to be condemned and hereinafter de "Defendants allege upon information and belief that said plaintiff has no purpose or design to construct any railroad, but that what has been done has been with a view to annoy defendants and to prevent said defendants from constructing their res-scribed. ervoir and canals and obtaining electrical power for the purpose aforesaid, and for the purpose of preventing any legitimate railroad undertaking from being consummated, if the operation of a line through said cañon was essential. "Defendants allege that the construction of a railroad along the bottom of said cañon would be destructive of their enterprise and reservoir and power, and would prevent them from carrying out the work in which they have been engaged long prior to the spasmodic, uncertain, and mala fides entry of said plaintiff into said cañon, and in which they are still engaged." It was alleged that plaintiff knew of the intention and character of defendants' work, and to permit it to condemn the land and to deprive defendants of its possession would be a "grievous wrong and fraud upon their rights." "That the said defendant L. Holbrook has disclaimed any interest in the lands. "That neither on or before or since the 8th day of July, 1896, has the defendants the Telluride Power Transmission Company and L. L. Nunn, or either of them, had any possession of the lands sought to be condemned, or by appropriation or otherwise any right to raise the waters of Provo river so as to flow the same or any part thereof, or any right to the said lands or possession thereof as part of a reservoir site, and to raise the waters of said river so as to flow the same would be an unreasonable use of Isaid waters and the public lands and easeinents in the cañon adjacent to said river. "And it is now adjudged by the court: "That the use to which the land sought to be acquired by plaintiff is to be applied in the construction and operation of a line of railroad and telegraph for which the 1 U. S. Comp. St. 1901, p. 1568. 577 lands are to be used for a right of way, and that it is a public use authorized by law; and that the taking and condemnation thereof is necessary to such use. That said lands have not already been appropriated to any other public use. "That none of the defendants by pleadings or otherwise is seeking condemnation of said lands for a reservoir or other public use, and the lands cannot be used for both as a reservoir site as claimed and a railroad, and there is no common use, either public or private, to be adjusted." The judgment then recited the findings of the jury, and directed the money to be paid into court for subsequent distribution among those who should be entitled thereto. This judgment was afterwards set aside, at the request of defendants, to enable them to present findings, which they subsequently did. The court, however, refused to find as requested, and reinstated its former judgment and findings. The findings requested presented the allegations of the answers as established by the evidence, and also pre sented, as established, the feasibility of building the railroad upon lines which would not interfere with the projected works of the defendants. The plaintiff paid into court the award of the jury, and a final order of condemnation was made. The case was taken to the supreme court of the state, and the judgment of condemnation was there affirmed. 23 Utah, 22, 63 Pac. 995. The chief justice of the state allowed this writ of error. On appeal to the supreme court of the state there were eighty-three assignments of error, two of which were based on rulings in regard to the jury and forty-five of which were based upon instructions to the jury or refusals to instruct the jury. The rest of the assignments except three were based on the findings, and refusals to find, as requested by defendants. The last three assignments were as follows: "81. The court erred in denying defendants' petition to remove said cause to the Federal court. "82. The court erred in assuming to retain jurisdiction over said cause and proceeding to try the same after the filing of the petition on the part of the defendants to remove said cause to the circuit court of the United States for the district of Utah. "83. The court erred in holding and deciding that it had jurisdiction to hear, try, and determine said cause." to generate power to create electricity, and such decision was contrary to the protection afforded these defendants by the 14th Amendment of the Constitution of the United States. The decision likewise violated the rights of the said defendants under § 2, article 4, of the Constitution of the United States: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' "And the petitioners further say that in the final judgment and decree of the said supreme court of the state of Utah and of the district court of the fourth judicial district in and for the county of Utah, state of Utah, a decision was had against a right and privilege of these defendants claimed under a statute of the United States, which right and privilege was specially set up and claimed by these said defendants in said cause. That by the answer in said cause the defendants allege that they had the right and authority from the United States, and were exercising it, to erect a dam in Provo cañon for the purpose of creating power to transmit electricity. That said right and authority existed under the mining laws of the United States originally enacted in 1868 and amended in 1872, Revised Statutes, § 2339 [U. S. Comp. Stat. 1901, p. 1437], and the said right was denied by the said plaintiff and the said district court of the fourth judicial district, and the said su preme court of Utah on appeal held*that* these defendants had no right to erect such dam on the public unsurveyed lands of the United States. "And the petitioners further say that the said fourth judicial district court in and for the county of Utah, state of Utah, and the said supreme court of the state of Utah in affirming the said decision on appeal, have decided against the right of these defendants existing under the statute of the United States to remove the said cause from the said state court above named to the United States court, which claim was exercised duly by the petition and bond filed in due time by these defendants in the fourth judicial district court before the time expired for these said defendants to appear and answer to the suit brought against them by the said plaintiff in this cause." In the assignments of error those grounds are repeated, and errors are assigned upon the rulings on instructions by the district court and the action of the supreme court in sustaining those rulings. Section 2339 [U. S. Comp. Stat. 1901, p. 1437], referred to in the assignments of crror, is as follows: "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are In the petition for writ of error it was alleged that errors were committed by the supreme court of Utah, in that "the final judgment and decision of the supreme court of the state of Utah the said court erred in holding and deciding and determining that these defendants, both citizens of the state of Colorado, one a corporation existing un-recognized and acknowledged by the local der the laws of the said state of Colorado and the other a natural person, did not have the authority or the right to locate and appropriate public lands of the United States upon the Provo river flowing through said public lands of the United States for the purpose of maintaining a dam with which customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals for the purpose herein specified is acknowledged and confirmed; but whenever any person in the *580 579 construction of any ditch or canal injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage." Messrs. H. P. Henderson, S. A. Bailey, and Arthur Brown for plaintiffs in error. Messrs. Joel F. Vaile, R. Harkness, and E. O. Wolcott for defendant in error. * Mr. Justice McKenna delivered the opinion of the court: company and by Nunn, and the latter claims, besides, that he was denied the privileges to which he was entitled as a citizen of the United States. The deprivation of the rights of the plaintiffs in error under the 14th Amendment was accomplished, it is said, by the court's assuming to try without the assistance of the jury the questions of fact upon which those rights depended. In other words, that the district court assumed to determine, and did determine, all conflicting or adverse claims to the property, and submitted only to the jury the questions of compensation and damages. This action, it is asserted, was contrary to the meaning of the statute of the state, or, if not so, the statute is void. With the latter objection we only are concerned, and it is enough to say in answer to it that the invalidity of the statute was not raised in the district court, nor assigned as a ground of error on the appeal taken to the supreme court of the state. It appears for the first time in the petition for the writ of error from this court. Nor did the supreme court of the state pass upon the action of the district court in view of its unconstitutionality. Indeed, it found it unnecessary to pass upon that action except in the most general way. The court said: The defendant in error has moved to dismiss the case for want of jurisdiction in this court. The essential issues of fact were decided against the plaintiffs in error, and the case, therefore, seems to be brought within the ruling in Telluride Power Transmission Co. V. Rio Grande Western R. Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245. The corporations in this case were parties in that case, and so were Nunn and Holbrook. The same public interests were in opposition, and the power company relied for rights in Provo cañon on § 2339 of the Revised Statutes of the United States [U. S. Comp. Stat. 1901, p. 1437], as the company does in this case, and the rulings on those interests and rights constituted the vital questions in that case as they do in this. It was pointed out there that, "in order to establish any rights under the statute, it was incumbent upon the defendants to prove their priority of possession, or at least to disprove priority on the part of the plaintiff." And it was observed: "The question who had acquired this priority of possession was not a Federal question, but a pure question of fact, upon which the decision of the state court was conclusive. No construction was put upon the statute; no question arose under It is further urged that the decision of it; but a preliminary question was to be de- the supreme court deprived plaintiffs in ercided before the statute became material, ror of their rights under the Constitution and that was whether defendants were first of the United States, and under § 2339 of in possession of the land. Even if priority the Revised Statutes [U. S. Comp. Stat. of possession had been shown, it would still 1901, p. 1437], in holding, as it is claimed, have been necessary to prove that defend that neither the power company nor Nunn ants' right to the use of the water was rec- had any authority or right to locate and apognized and acknowledged by the local cus-propriate public land of the United States toms, laws, and decisions, all of which were questions of state law." After discussion it was also observed: "But the difficulty in this case is that, before it could be said that any right or title under a statute of the United States had been denied, it was necessary to establish as a question of fact priority of possession on the part of the Telluride Company, as well as conformity to local customs, laws, and decisions. These were local, and not Federal, questions. The jurisdiction of this court in this class of cases does not extend to questions of fact or of local law, which are merely preliminary to, or the possible basis of, a Federal question." Manifestly if the plaintiffs in error obtained no rights under § 2339 [U. S. Comp. Stat. 1901, p. 1437], none could be taken from them. But a violation of the 14th Amendment of the Constitution of the United States is claimed by both the power "The appellants assign many errors upon the refusal of the court to instruct the jury as requested, upon the instructions given to the jury, and upon the facts found by the court. Under the view taken these questions become unimportant, as neither of the appellants were injured in their rights; nor were either entitled to any damages under the facts shown in this case. The instruc tions were, at least, as favorable to the appellants as they had a right to expect." upon the Provo river for the purpose of maintaining a dam to store water with which to generate power to create electricity. The supreme court in its opinion referred to its decision in the former case between the parties, 16 Utah, 125, 51 Pac. 146; 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245, not, however, as conclusive, but "as authority and as determining the law in this case, in so far as it decided the same questions involved in the present case," and the court stated that it had been decided in that case, among other things, "that the defendants (plaintiffs in error here) had not appropriated the land in dispute, and that neither of the defendants was in actual possession of the land when the plaintiff located his right of way, took possession, and engaged in grading it." Then passing upon the rights of the power company and Nunn, the court said: "The record shows that the San Miguel |