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 district court of the fourth judicial district of that state. The complainant in the suit, defendant in error here, was a corporation of Utah. The plaintiff in error was a Colorado corporation. Ferguson and Holbrook were citizens of Utah; Nunn was a citizen of Colorado. The bill alleged the corporate character of the complainant, and the necessity of the land for the use of the railroad. The route of the road was set out, and that it would pass over a tract of unsurveyed [187 U.S. 569, 570] lands of the United States which could not be accurately described, but which, when surveyed, would proximately be parts of the S.W. 1/4 of section 27, W. 1/2 of S.W. 1/4 of 26. N.E. 1/4 of the S.W. 1/4 section 26, and N.W. 1/4 of the S.E. 1/4 of section 26, T. 5, S. R. 3, east Salt Lake meridian, and lying in Provo ca non, 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 ca non 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.
The following were the allegations of the bill as to the other defendants:
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 controversy, 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.
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 ca non, 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, ran uncertain and irregular lines up said Provo ca non, cut brush and made slight and unimportant excavations, which from their character, gave no evidence of any purpose or design upon the [187 U.S. 569, 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 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 ca non 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 ca non, and had extensive surveys made, and prosecuted the same with diligence; that the greater part of the lands in the ca non 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 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 unsurveyed lands [187 U.S. 569, 573] of the United States with the design and specific purpose of constructing in said ca non 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 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 ca non 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 ca non, 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.'
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:
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.'
It was averred that Holbrook had no interest in the controversy.
The allegations of defendants were not only set up in their answers, but were also made the subject of cross bills.
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 assessed at nothing.
There were many instructions asked by defendants which the court refused. They also objected to the instructions which [187 U.S. 569, 575] the court gave. Subsequently the court rendered its judgment, in which it found and adjudged as follows:
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 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 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:
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 under 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 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.'
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, referred to in the assignments of error, is as follows:
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.
Messrs. Samuel B. Paul and Alexander Wolf for petitioner.
Mr. Henry P. Blair for respondents. [187 U.S. 569, 579]
Mr. Justice McKenna delivered the opinion of the court:
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,
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
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
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
It is further urged that the decision of the supreme court deprived plaintiffs in error of their rights under the Constitu- [187 U.S. 569, 581] tion 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
Then passing upon the rights of the power company and Nunn, the court said:
The policies, which are alike, contained so, because under 2, art. 12, of the Constitution
No. 20,229. $1,000.
By this policy of insurance the Hartford 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.
Thos. F. Barrett, Agent. power to engage in its business of mining,
This policy shall be canceled at any time laws of this state. A corporation of Colorado coming into this state cannot bring [187 U.S. 569, 583] with it powers with which it is not endowed in Colorado. It can only have an existence under the express laws of the state where it is created, and can exercise no power which is not granted by its charter or some legislative act. The appellant corporation never filed with the secretary of state of the state of Utah a copy of its articles of incorporation, by either name under which it was in corporated, and never accepted the laws or
This policy is made and accepted subject any agent or fixed any place of business within the state as required by law. The defendant corporation, therefore, is not entitled to the benefit of the laws of this state, with reference to corporations. State v. Southern P. Co. 52 La. Ann. 1822, 28 So. 372; Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U.S. 1 , 32 L. ed. 837, 9 Sup. Ct. Rep. 409; George R. Barse Live Stock Co. v. Range Valley Cattle Co. 16 Utah, 59, 50 Pac. 630.
In witness whereof, this company has executed premises.
This policy shall not be valid until countersigned of the business of the defendant corporation, both in Colorado and Utah. The chief
Geo. L. Chase, President. P. C. Royce, Secretary. Thos. Turnbull, Ass't Secretary. Chas. E. Chase, 2d Ass't Secretary. Countersigned by-- Thos. F. Barrett, Agent. actually made, and no dam was constructed
Upon these facts, judgment was, on December board of the defendant corporation was the controlling authority for and with whom Nunn acted. If Nunn had any right, it was with reference to the smaller power located below. The dam at Hanging Rock was to be a larger power, and was talked about in the project, but it was not constructed, and the ownership, if in anyone, was in the defendant company, which was incapable of acquiring such ownership.
From this excerpt it appears that the supreme court construed the statutes and Constitution of Utah, deciding that the power company had no existence as a corporation in the state, and could acquire, therefore, no rights as such, and 'was not in a position to question the right of the plaintiff [defendant in error] in the premises.' And no independent right was found in Nunn. What was done by him the court said was done 'for the use and benefit of the defendant company.' And it was decided that he was not 'a personal claimant and owner of the easement and right of way in controversy as against the right of way acquired by respondent [plaintiff in error].' These conclusions did not involve the decision of Federal questions. The first expressed the meaning and effect of local statutes. The second depended upon a finding of fact. Neither, therefore, is reviewable by us.
The whole controversy was and is as to the right to occupy Provo ca non, the defendant in error claiming that right for a railroad, the plaintiffs in error claiming that right for a reservoir site, and this latter right plaintiffs in error claimed and claims under 2339 of the Revised Statutes of the United States [U. S. Comp. Stat. 1901, p. 1437]. That section was and is their reliance. They say in their brief that they 'do not claim to hold the land in controversy 'under the alleged contract with Ferguson.
But their rights under that section depended upon questions of fact and questions of local law. The questions of fact were found against plaintiff in error, and the questions of local law we cannot review.
A Federal question is asserted because of the ruling of the [187 U.S. 569, 585] district court refusing to remove the case to the United States circuit court upon the petition of plaintiffs in error. But upon the denial of the application to remove they filed the record in the circuit court of the United States, and that court remanded the cause, and a copy of its order was filed in the district court before the commencement of the trial. In substantially similar circumstances we held in Missouri P. R. Co. v. Fitzgerald, 160 U.S. 556 , 40 L. ed. 536, 16 Sup. Ct. Rep. 389, that if error there had been in the ruling of the state court it became wholly immaterial.
Writ of error dismissed.
[ Footnote 1 ] U. S. Comp. St. 1901, p. 1568.