to a state court, where the question first ap- its unconstitutionality. 2. Findings of fact or questions of local law [No. 72.] Argued November 10, 1902. Decided January 5, 1903. I See same case below, 23 Utah, 22, 63 Pac. 995. Statement by Mr. Justice McKenna: The following were the allegations of the bill as to the other defendants: "And on information and belief the plaintiff alleges that the defendants the Telluride 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. he That the defendant W. W. Ferguson refuses sell to the other defendants or some of[571] 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." This is a suit to condemn land in the exercise of the right of eminent domain, under the laws of Utah, and was brought in the The prayer was for the ascertainment of district court of the fourth judicial district the extent of occupation by defendants and of that state. The complainant in the suit, their damages and the condemnation of a defendant in error here, was a corporation right of way of 100 feet wide on each side of Utah. The plaintiff in error was a Colo- of the center line of plaintiff's survey, on rado corporation. Ferguson and Holbrook and over the land occupied by defendants, or were citizens of Utah; Nunn was a citizen any of them, and for general relief. of Colorado. The bill alleged the corporate The Telluride Power Transmission Comcharacter of the complainant, and the neces-pany and the defendant Nunn petitioned for sity of the land for the use of the railroad. the removal of the cause to the circuit court The route of the road was set out, and that of the United States for the district of Utah it would pass over a tract of unsurveyed on the ground of separable controversy. [570]lands *of the United States which could not The petition alleged that they were citizens be accurately described, but which, when and residents of Colorado, and the plaintiff surveyed, would proximately be parts of the was a resident and citizen of Utah; that S.W. of section 27, W. of S.W. of 26, Holbrook had no interest in the controverN.E.of the S.W. section 26, and N.W.sy, and that. Ferguson had contracted to sell 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 had or claimed some possessory right by occupation 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 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 northwest quarter of the southeast quarter of section 26, when the land should be surveyed. It was alleged that the line of the railroad was on and over said lands, and that plaintiff had appropriated for railroad purposes a strip of land 200 feet wide, containing 22 acres, more or less; that such strip was necessary for the construction and operation of the road. A map of the line of road was attached to the bill. 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. In that court the defendants answered,— Ferguson separately, the other defendants uniting. The answers need not be quoted. It is enough to say that they put in issue the allegations of the bill as to the organization and existence of the plaintiff corporation, its authority to build a railroad up Provo cañon, the survey of its line in March, 1896, and its location. It was alleged "that certain persons claiming to be the agents of said alleged plaintiff had, during the summer and fall of 1896, run uncertain and irregular lines up said Provo cañon, cut brush and made slight and unimportant excavations, which, from their character, gave no evidence of any purpose or design upon the [572] *part of any person to survey or construct any line of railroad;" and that such line "passed over and into certain tracts of unsurveyed 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 en-in said reservoir, has been occupied by said abling 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." 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 possession and occupation of the land in said cañon between said points, and which is intended 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 withFerguson 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." The good faith of the defendants was alleged, 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: "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, lish a railroad therein, and defendants allege that said lines so run were so irregular and uncertain, so shifting and changing, as to indicate no such purpose; that in two or three points in said cañon various persons claiming to represent plaintiff made slight 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. The adaptability of Provo cañon for supplying 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 ex-pretending *that it was the purpose to estab-[574] cavations therefor in order to obtain power with which to aid in the construction of a large dan 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 consummation 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 unsur[573]veyed lands of the United States with the design and specific purpose of constructing in said cañon at a point at or near what will be, when surveyed, as nearly as defendants can determine, the southwest quarter of the southeast quarter of section 27, township 5 south, range 3 east, a dam by which to reservoir and store said surplus waters of Provo river; that they surveyed said reservoir, extending the lines of survey up said river from said point to a point at or near the northeast corner of the northeast quarter of the southwest quarter of section 7, 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 a "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 view to annoy defendants and to prevent said defendants from constructing their res 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 It was averred that Holbrook had no in- The allegations of defendants were not only set up in their answers, but were also made the subject of cross bills. A jury was impaneled, 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 assessed at nothing. There were many instructions asked by defendants which the court refused. They [575]also objected to the instructions which the court gave. Subsequently the court rendered its judgment, in which it found and adjudged 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. "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 [576] of railroad and telegraph for which the 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 both as a reservoir site as claimed and a railroad, and there is no common use, either public or private, to be adjusted." This 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. 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 presented, 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 su 23 "That the plaintiff filed a copy of its arti-preme court of the state, and the judgment cles of incorporation and due proof of its of condemnation was there affirmed. organization with the Secretary of the Inte Utah, 22, 63 Pac. 995. The chief justice of rior, and the same were duly approved by the state allowed this writ of error. the Secretary on the 27th day of May, 1890, under the act of Congress of March 3, 1875, granting the right of way to railroad companies. 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 "That the lands sought to be condemned were based upon instructions to the jury or and the adjoining lands are unsurveyed refusals to instruct the jury. The rest of public lands of the United States, and at the the assignments except three were based on time of the beginning of the suit were occu- the findings, and refusals to find, as repied by William W. Ferguson, who hasquested by defendants. The last three assince 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 described. signments 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 the United States for the district of Utah. remove said cause to the circuit court of [577] ciding that it had jurisdiction to hear, try, "83. The court erred in holding and de and determine said cause." "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 conIn the petition for writ of error it was aldemned, or by appropriation or otherwise leged that errors were committed by the suany right to raise the waters of Provo river preme court of Utah, in that "the final so as to flow the same or any part thereof, judgment and decision of the supreme court or any right to the said lands or possession of the state of Utah the said court erred in thereof as part of a reservoir site, and to holding and deciding and determining that raise the waters of said river so as to flow these defendants, both citizens of the state the same would be an unreasonable use of of Colorado, one a corporation existing unsaid waters and the public lands and ease-der the laws of the said state of Colorado inents in the cañon adjacent to said river. and the other a natural person, did not have the authority or the right to locate and ap-| rights shall be maintained and protected in propriate public lands of the United States the same, and the right of way for the conupon the Provo river flowing through said struction of ditches and canals for the purpublic lands of the United States for the pose herein specified is acknowledged and purpose of maintaining a dam with which confirmed; but whenever any person in the to generate power to create electricity, and construction of any ditch or canal injures such decision was contrary to the protection or damages the possession of any settler on afforded these defendants by the 14th the public domain, the party committing Amendment of the Constitution of the such injury or damage shall be liable to the United States. The decision likewise vio- party injured for such injury or damage." lated the rights of the said defendants under 82, 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.' Mr. H. P. Henderson argued the cause, and, with Messrs. S. A. Bailey and Arthur Brown, filed a brief for plaintiffs in error. Mr. Joel F. Vaile argued the cause, and, with Messrs. R. Harkness and E. O. Wolcott, filed a brief for defendant in error. "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 The defendant in error has moved to disand privilege of these defendants claimed miss the case for want of jurisdiction in under a statute of the United States, which this court. right and privilege was specially set up and were decided against the plaintiffs in erThe essential issues of fact claimed by these said defendants in said ror, and the case, therefore, seems to be cause. That by the answer in said cause brought within the ruling in Telluride the defendants allege that they had the Power Transmission Co. right and authority from the United States, Western R. Co. 175 U. S. 639, 44 L. ed. 305, V. Rio Grande and were exercising it, to erect a dam in 20 Sup. Ct. Rep. 245. The corporations in Provo cañon for the purpose of creating this case were parties in that case, and so power to transmit electricity. That said right and authority existed under the min-lic interests were in opposition, and the were Nunn and Holbrook. The same pubing laws of the United States originally en- power company relied for rights in Provo acted in 1868 and amended in 1872, Revised cañon on § 2339 of the Revised Statutes of Statutes, § 2339 [U. S. Comp. Stat. 1901, p. the United States [U. S. Comp. Stat. 1901, 1437], and the said right was denied by the p. 1437], as the company does in this case, said plaintiff and the said district court of and the rulings on those interests and rights the fourth judicial district, and the said su- constituted the vital questions in that case [578]preme court of Utah on appeal held *that as they do in this. It was pointed out these defendants had no right to erect such there that, "in order to establish any rights dam on the public unsurveyed lands of the under the statute, it was incumbent upon United States. possession, or at least to disprove priority the defendants to prove their priority of on the part of the plaintiff." observed: "The question who had acquired And it was this priority of possession was not a Federal question, but a pure question of fact, upon which the decision of the state court upon the statute; no question arose under was conclusive. No construction was put it; but a preliminary question was to be decided before the statute became material, and that was whether defendants were first in possession of the land. Even if priority of possession had been shown, it would still have been necessary to prove that defendants' right to the use of the water was rectoms, laws, and decisions, all of which were ognized and acknowledged by the local cusquestions of state law." *Mr. Justice McKenna delivered the[579] opinion of the court: "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 error, 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 recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested 187 U. S. After discussion it was also observed: "But the difficulty in this case is that, beunder a statute of the United States had fore it could be said that any right or title 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 [580] are merely preliminary to, or the possible propriated the land in dispute, and that neibasis of, a Federal question." ther 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." 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 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. Then passing upon the rights of the power company and Nunn, the court said: "The record shows that the San Miguel Gold Mining Company was organized in Colorado, February 7, 1891, with a capital of $15,000,000, and was authorized to acquire by purchase, lease, or otherwise, mining The deprivation of the rights of the plain- property, together with water rights, power, tiffs in error under the 14th Amendment ways, mills, and mill sites; to develop, mine, was accomplished, it is said, by the court's work, and utilize the same, and to carry on assuming to try without the assistance of a general mining business. Its principal the jury the questions of fact upon which office is in Telluride, Colorado, and its printhose rights depended. In other words, cipal business is to be done in Colorado, and that the district court assumed to deter its articles provide that part of its business mine, and did determine, all conflicting or may be done in Boston, Mass., and its prinadverse claims to the property, and sub-cipal office kept there. The stock is nonasmitted only to the jury the questions of sessable, and no requirements for payments compensation and damages. This action, it of subscription are incorporated in it. In is asserted, was contrary to the meaning of February, 1896, an amendment of its artithe statute of the state, or, if not so, the cles was made and filed with the secretary statute is void. of state in Colorado changing the name of the company to the Telluride Power Transmission Company. Appellant Nunn was its manager. 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: "Section 427, p. 614, 1 Colo. Stat. 1893, among other matters, provides that, 'when said corporation shall be created under the laws of this state for the purpose of carrying on part of its business beyond the limits thereof, such certificate shall state that fact.' Subdivision 2 of this section provides that the object for which the company is [582) created shall be stated. Section 498 authorizes Colorado corporations authorized to do business out of the state to accept the laws of the other states, and there exercise its franchise. "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 "So it appears that the appellant comcourt. Under the view taken these ques-pany is a mining corporation organized in tions 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 instructions were, at least, as favorable to the appellants as they had a right to expect." * It is further urged that the decision of the supreme court deprived plaintiffs in error of their rights under the Constitution [581]of the United States, and under § 2339 of the Revised Statutes [U. S. Comp. Stat. 1901, p. 1437], in holding, as it is claimed, that neither the power company nor Nunn had any authority or right to locate and appropriate public land of the United States 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 (plaintiff's in error here) had not ap Colorado, without complying with the statute, and with no other powers to do business as such in this state. Without complying with the Constitution and laws of this state with respect to foreign corporations, it unlawfully assumes to appropriate both land and water within this state. This must be so, because under § 2, art. 12, of the Constitution of this state, no corporation in existence in this state when the Constitution is adopted shall have the benefit of its laws, without filing with the secretary of state an acceptance of the provisions of the Constitution; and under § 6, no corporation organized out of the state shall be allowed to transact business in this state on conditions more favorable than those prescribed by law for similar corporations organized under the laws of the state. "Under 9, no corporation is allowed to do business in this state without having one or more places of business therein, with an agent upon whom process may be served, nor without first filing a certified copy of its articles of incorporation with the secretary of state. Section 10 provides that no corporation shall engage in any business other than that expressly authorized in its charter or articles of incorporation. |