# Telluride Power Transmission Company v. Rio Grande Western Railway Company (175 U.S. 639)

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United States Supreme Court
175 U.S. 639
Telluride Power Transmission Company v. Rio Grande Western Railway Company
Argued: December 8, 11, 1899. --- Decided: January 8, 1900
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 Canon, Utah, on either of two routes described; that in March, 1896, it commenced the survey and location of a line of railroad through the canon, 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, 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 subsquently 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 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 canon 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, they entered upon Provo Canon 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 canon, 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 canon, and that, if the plaintiff or anyone else should construct a railroad through the canon, 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 Canon 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 district court to remove the case to the circuit court of the United States.
Messrs. James H. Hayden, Joseph K. McCammon, and R. Harkness for defendant in error.
Mr. Justice Brown delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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