In a case brought up by writ of error from the Supreme Court of
a state, it appeared from a supplemental transcript of the record
that proceedings for a removal of the case to the circuit court of
the United States were taken in the court of original jurisdiction,
and were denied, but that no question regarding these proceedings
was made in the supreme court of the state, and the supplemental
transcript was not filed in such supreme court until after the case
had been decided there.
Held: that as no certiorari was
issued to bring it up, and no motion or order was made for leave to
file it, it could not be considered here.
By Rev.Stat. § 2339, whenever, "by priority of possession,"
rights to the use of water for mining purposes have vested and
accrued, and the same are recognized by local customs and laws,
"the possessors and owners of such vested rights shall be
maintained and protected in the same."
Held: that a
question of fact as to which party had priority of possession was
not a federal question.
The jurisdiction of this Court in cases brought up by writ of
error to a state court does not extend to questions of fact, or of
local law, which are merely preliminary to, or the possible basis
of, a federal question.
This was a suit brought by the Rio Grande Western Railway
Company, a corporation of Utah, in the District Court of the Fourth
Judicial District of Utah, against the Telluride Power Transmission
Company and two individual defendants, named Nunn and Holbrook, to
confirm and quiet the title of the plaintiff company to certain
unsurveyed public lands of the United States in the County and
State of Utah.
The bill of complaint was filed September 12, 1896, and set
forth that the railway company was authorized to construct and
operate a railway in Provo Canyon, Utah, on either of two routes
described; that in March, 1896, it commenced the survey and
location of a line of railroad through the canyon, which line
passed over certain tracts of unsurveyed lands of the United
States, of which one Murphy was in possession prior to the survey;
that it became the owner of this right of way
Page 175 U. S. 640
under an act of Congress affirming such rights, subject only to
its obligation to pay the occupant the damages to his possessory
right, which he subsequently released. The plaintiff further
alleged that, while lawfully in possession of the land, the
defendants set up an adverse claim, and by threats and force
stopped its work and denied its right to use the land for railway
purposes. A judgment was demanded that the adverse claim be decreed
unfounded; that the right of the plaintiff be confirmed, and the
defendants be enjoined from asserting their adverse claim or
interfering with the plaintiff's possession.
It would appear from a supplemental transcript of the record
filed in the Supreme Court of Utah, after its judgment upon the
merits, that, prior to any further action's being taken, and on or
about December 5, 1896, the defendants, the Telluride Power
Transmission Company, and the individual defendant Nunn, filed a
petition for a removal of the case to the circuit court of the
United States on account of diversity of citizenship, except as to
defendant Holbrook, who was charged with having no interest in the
controversy and with being a mere nominal party, and made such for
the purpose of ousting the jurisdiction of the federal court. Upon
hearing the arguments of counsel, the petition was denied.
After filing an objection to the further exercise of
jurisdiction by the state court, the defendants demurred to the
bill of complaint upon the ground that it did not state facts
sufficient to constitute a cause of action. The demurrer was
overruled. No exception was taken by the defendants, who united in
an answer in which it was alleged that the defendant Holbrook had
no interest in the subject matter in controversy. The answer
further denied the material allegations of the complaint, as well
as the existence of the plaintiff as a corporation, and averred
that the greater part of the bed of the canyon was unsurveyed
public land; that the defendants took possession of a large portion
of these lands for the purpose of constructing a reservoir, and of
other lands for canals, flumes, and small dams in order to carry
out the purpose of the enterprise for which they were chartered;
that, in 1894,
Page 175 U. S. 641
they entered upon Provo Canyon and made surveys for the purpose
of ascertaining whether water power could be obtained for the
production of electric current and wether, by storage in
reservoirs, water could be obtained for agricultural and mining
purposes, and that thereafter they took possession of a large part
of the public domain lying in the said canyon, including the land
in dispute, for the purpose of constructing a reservoir thereon;
that, in order to complete this enterprise, they would require the
whole of the canyon, and that, if the plaintiff or anyone else
should construct a railroad through the canyon, this enterprise
would be defeated; that in 1895, they began the construction of a
flume in order to obtain power with which to aid in the
construction of a dam 85 feet high at Hanging Rock, the latter dam
being intended to retain water for power and irrigation purposes;
that they made surveys of the contour of the reservoir to be formed
by the dam; that in the spring of 1896, they prosecuted the work
upon the said surveys and flume; that, prior to the plaintiff's
entry into Provo Canyon, they, the defendants the Telluride Company
and Nunn, had entered upon the unoccupied, unsurveyed public land
therein with the purpose of constructing an expensive dam and
reservoir, and that, on September 12, 1896, when this suit was
commenced, and for more than two years prior thereto, they were and
had been in actual possession of the land in dispute.
The case was tried by the court without a jury. Findings of fact
and conclusions of law were made by the court to the effect that
the plaintiff had prior possession of the land and that the adverse
claim of the defendants was unfounded. A judgment was thereupon
entered in favor of the plaintiff, its title to the lands in
question confirmed and quieted, the adverse claim adjudged invalid,
and the defendants enjoined from setting up claims or exercising
rights adverse to those of the plaintiff. From this judgment,
defendants, the Telluride Company, and Nunn, took an appeal to the
Supreme Court of Utah, which affirmed the judgment of the district
court. Whereupon these defendants sued out a writ of error from
this Court, assigning, amongst other things, as error, the failure
of the
Page 175 U. S. 642
district court to remove the case to the circuit court of the
United States.
MR. JUSTICE BROWN delivered the opinion of the Court.
1. The question of the removal of the case to the federal court
may be disposed of without difficulty. The facts are that, on
January 21, 1898, four months after the case was argued in the
supreme court and six weeks after it was decided, there was filed
in the Supreme Court of Utah a supplemental transcript containing
the original petition for removal to the circuit court, the bond of
the petitioners, the order of the court denying the petition, and a
protest of the defendants against the further exercise of
jurisdiction by the state court. But it does not appear how this
supplemental record came to be filed. No certiorari was issued to
bring it up. No motion was made for leave to file it. No order was
entered permitting it to be filed, and, for aught that appears, it
was procured by some unauthorized person and thrust upon the files
without notice to either party, without consultation with the
court, and for the purpose of creating a defense which was never
called to the attention of the supreme court. The transcript, upon
which the case was heard in the supreme court, was stipulated by
the attorneys for the respective parties to be
"a full, correct, true, and complete transcript of the
proceedings in said cause on appeal, and of all the pleadings in
said cause, of all orders on demurrer, of the findings of the court
and conclusions therefrom, and of the judgment, and of notice of
intention to move for a new trial, and of the notice of appeal, and
of the bill of exceptions and statement of motion for new
trial."
In short, this supplemental transcript is a mere excrescence. It
is scarcely necessary to say that, under such circumstances, it
cannot be considered here.
Goodenough Mfg. Co. v. Rhode Island
Horse Shoe Co., 154 U. S. 635.
Page 175 U. S. 643
2. If there be any federal question in the case, it arises from
Rev.Stat. § 2339, which reads 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 rights shall be maintained and
protected in the same, and the right of way for the construction of
ditches and canals for the purposes herein specified is
acknowledged and confirmed; but whenever any person, in the
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."
It is insisted that the case falls within the first category of
cases specified in Rev.Stat. § 709,
"where is drawn in question the validity of a treaty or statute
of, or an authority exercised under, the United States, and the
decision is against their validity."
But the cases in which this clause has been applied are those
wherein the validity of a statute, or of an authority exercised by
a public official of the United States has been called in question,
and not those where a general right is set up under a statute.
McGuire v.
Massachusetts, 3 Wall. 387;
Millingar
v. Hartupee, 6 Wall. 258;
Daniels v.
Tearney, 102 U. S. 415;
Sharpe v. Doyle, 102 U. S. 686;
Buck v.
Colbath, 3 Wall. 334. The use of the word
"authority" in the third clause in connection with the word
"commission" favors the theory that a personal authority was
intended, and not the assertion of an abstract right created by a
statute.
We think the case falls more properly within the third clause,
as one wherein a title or right is claimed under a statute of the
United States. In such case, such title or right must be "specially
set up and claimed" before judgment in the state court. This was
not done in the case under consideration. In its complaint, the
plaintiff railway company makes no allusion to this act, but relies
upon an act of Congress respecting a right of way for railroads
through public lands, Act of March 3, 1875, c. 152, 18 Stat. 482,
and upon certain
Page 175 U. S. 644
provisions of the local laws of Utah. The statute is not set up
in the answer of the defendants, who relied upon their priority of
possession. So, also, in the thirty-three assignments of error
filed by the defendants in the state supreme court, no reference is
made to an act of Congress as the basis of their right, and no
intimation is made that the district court erred in the
construction or applicability of any such act.
In the opinion of the supreme court, it is stated that the
errors alleged raised the questions, first, whether there was not a
statutory forfeiture of the plaintiff's charter in consequence of a
failure to complete and put its road in operation; second, whether
plaintiff had the lawful right to locate its right of way in the
canyon, and had located it over the land in dispute, and was in
actual possession thereof, when defendant interfered; third,
whether the law required the plaintiff to file with the register of
the land office a profile of its route; and, fourth, whether the
defendants made such appropriation, or had such possession of the
land in dispute as authorized them to hold it against the
plaintiff. After discussing the validity of the plaintiff's
charter, the powers granted by it, and the possession of the
plaintiff, the opinion proceeds to consider whether the defendants
had any right to the land in dispute, and in this connection finds
that they might have obtained a vested right to own unappropriated
waters of the Provo River for the purposes specified in their
charter, and that such right is recognized and acknowledged by
Rev.Stat. sec. 2339, above cited, but professed itself
"unable to find from a preponderance of the evidence in the
record that the defendants or either or them, had appropriated the
land in dispute and that they were, or that either of them was, in
actual possession of it when the plaintiff located its right of
way, took actual possession, and engaged in grading it. We cannot
regard the plaintiff as a mere intruder on the defendants'
possession, nor can we hold that they had a right to prevent the
plaintiff's employees from grading it and to eject plaintiff from
actual possession. It is true that defendants had surveyed for dams
and reservoirs at different points on the river, but they had not
taken and did not hold actual possession of the land in dispute.
"
Page 175 U. S. 645
The petition in error for the first time set up a right and
authority under the mining laws of the United States, Rev.Stat.
sec. 2339, and charged that the decision of the trial court, as
well as of the supreme court of the state, was against the
authority and validity of the claim of the defendants. The
assignments of error turn principally, if not wholly, upon the
finding of prior possession on the part of the plaintiff, the
refusal of the court to remove the cause, and its ruling that the
plaintiff had the right under its charter to construct the
road.
From this resume of the proceedings, it is evident that there
was no denial to the defendants of any right they may have
possessed by virtue of a priority of possession. The statute
(Rev.Stat. sec. 2339) provides that "whenever, by priority of
possession, rights to the use of water" for certain purposes "have
vested and accrued, and the same are recognized and acknowledged by
the local customs, laws, and the decisions," the owners of such
vested rights "shall be maintained and protected in the same," and
their right of way for the construction of ditches and canals
acknowledged and confirmed. But 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. 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; 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 recognized and
acknowledged by the local customs, laws, and decisions, all of
which were questions of state law.
In this connection, an attempt is made to distinguish between
the findings of fact and the conclusions of law. Defendants concede
that they are bound by the findings of fact upon the subject of
possession, but that they are not
Page 175 U. S. 646
bound by the conclusions of law, which are as follows: first,
that the plaintiff, prior to the commencement of the suit, had the
possession, right of possession, and the inchoate title of the
lands described; second, that the defendant company had no power in
Utah to engage in generating electric power for sale; third, that
defendants never had the title, possession, or right of possession,
to the lands, or acquired any vested right in accordance with the
laws or customs of the country, or any right to flow or otherwise
occupy said lands, or prevent the use and occupation thereof by the
plaintiff railroad company, and that their adverse claim was
unfounded; fourth, that the plaintiff was entitled to judgment.
It is quite evident that these findings involved either
questions of fact or questions of local law, and that, while the
finding of the ultimate fact of prior possession may possibly have
been a legal conclusion, it was not a federal question. In this
particular, the case is covered by
Eilers v. Boatman,
111 U. S. 356,
which was an action for the settlement of adverse claims to mineral
lands. The case turned upon the priority of location, which the
court held was a matter of fact, although the court below called it
a conclusion of law.
The case under consideration in its material aspects resembles
that of
Bushnell v. Crooke Mining Co., 148 U.
S. 682, which was an action of ejectment growing out of
conflicting and interfering locations of mining claims. As stated
by Mr. Justice Jackson,
"the question presented on the trial of the controversy, under
the pleadings, was purely one of fact, and had reference to the
true direction which the Monitor lode or vein took after
encountering a fault, obstruction, or interruption at a point south
of the discovery shaft sunk thereon. . . . After the decision had
been rendered by the supreme court of the state, a petition for
rehearing was presented by the plaintiffs in error which for the
first time sought to present a question whether section 2322 of the
Revised Statutes of the United States gave to the appellants 'the
exclusive right of possession' and enjoyment of all other veins or
lodes having their apexes within the Monitor's surface ground."
The court held it to be
"plainly manifest that neither the pleadings
Page 175 U. S. 647
nor the instructions given and refused present any federal
question, and an examination of the opinion of the supreme court
affirming the action of the trial court as to instructions given,
as well as its refusal to give instructions asked by the defendants
below, fail to disclose the presence of any federal question."
In this connection, Mr. Justice Jackson quotes the remark of THE
CHIEF JUSTICE in
Cook County v. Calumet & Chicago Canal
Co., 138 U. S. 635,
138 U. S.
653:
"The validity of a statute is not drawn into question every time
rights claimed under such statute are controverted, nor is the
validity of an authority every time an act done by such authority
is disputed."
See also Doe v. City of
Mobile, 9 How. 451.
The position of the plaintiffs in error is that, as their whole
case depended upon the rights asserted by them under section 2339,
and that, as the courts decided adversely to the rights claimed by
them, there was no necessity of a special reference to that
statute, relying in this connection upon such cases as
Miller v.
Nicholls, 4 Wheat. 311;
Satterlee
v. Matthewson, 2 Pet. 380,
27 U. S. 410,
and others cited in
Columbia Water Power Co. v. Columbia
Electric Street Railway Co., 172 U. S. 475,
172 U. S. 488,
in which we have held that if it sufficiently appear from the
record that the validity of a state statute was drawn in question
as repugnant to the Constitution of the United States, and the
question was decided, or such decision was necessarily involved in
the case, and the case could not have been determined without
deciding such question, the fact that it was not in terms specially
set up and claimed in the record is not conclusive against a review
of the question here. 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.
The writ of error must therefore be
Dismissed.
