As we have said, a motion was made to dismiss the bill. The grounds of the motion were that there was no jurisdiction in the court, the controversy not arising under the Constitution and laws of the United States, and that the bill did not state facts sufficient to constitute a cause of action against defendants or either of them.
There is an assertion, in words, of rights under the Constitution of the United State, and the only question now presented is whether the assertion is justified by the allegations of the bill. Putting the question concretely, or rather the contention which constitutes its foundation, the District Court said:
'The contention of the plaintiff is that by virtue of its charter, it has appropriated the potentialities of the river and its tributaries within the boundaries by it designated in its resolution of improvement, and that it is entitled, because of its incorporation under the general laws of the state, to exclude any use of the water power of these streams of the nature of the use which it anticipates enjoying in the future while it proceeds, however dilatorily, to make its improvements in detail and to complete its ambitious scheme. In brief, its proposition is that its charter is equivalent to a contract with the state of Ohio giving it the exclusive right to the employment of the benefits which nature has conferred upon the public through the forces of these streams to the end that, until it finds itself able to completely occupy all the territory which it has privately designated to be necessary for its use, the public shall not have the advantage of any portion not immediately occupied by it through the employment of the resources thereof by another public utility company.'
The court rejected the contention holding that it was not tenable under the law and Constitution of Ohio. To sustain this view the court cited prior Ohio cases, and certain cases on the docket of the court, and, as an inference from them, declared that it was-
'not true in Ohio that the character of complainant gave to it 'a vested right seemingly unlimited in time to exclude the rest of the world from the water sheds it chose' simply by declaring by resolution just what territory it hoped in the future to occupy to carry out its purposes.'
'The terms of section 19, article 1, of the Ohio Constitution militate against the plaintiff's claim. Until appropriation is completed as provided by the condemnation laws of the state, the Traction Company's right to dominion over its holdings is inviolate. Wagner v. Railway Co., 38 Ohio St. 32.'
The court also cited Sears v. City of Akron, 246 U.S. 242, 38 Sup. Ct. 245, 62 L. Ed. 688 (then just delivered), expressing the view that, if the case had been brought to the court's attention sooner, a less extended discussion of the motion to dismiss could have been made.
We concur with the District Court, both in its reasoning and its deductions from the cited cases. The contention of plaintiff is certainly a bold one, and seemingly erects into a legal principle that unexecuted intention, or partly executed intention, has the same effect as executed intention, and that the declaration of an enterprise gives the same right as its consummation. Of course, there must be a first step in every project as well as a last step, and in enterprises like those we are considering there may be attainment under the local law of a right invulnerable to opposing assertion. And this plaintiff contends. To be explicit it contends that as against the Power Company and the Traction Company, they being its competitors in the same field of enterprise, its resolution of June 4, 1908, constituted an appropriation of the waters of the river, and a definite location of 'its proposed improvement for that purpose upon specifically described parcels of land previously entered upon and surveyed by its engineers.' Whether the resolution had that effect under the Ohio laws we are not called upon to say. Indeed, we are not so much concerned with the contention as the ground of it. Plaintiff alleges as a ground of it, a contract with the state of Ohio, by its incorporation, 'wherein and whereby said state duly granted to the plaintiff a right of way over and along said Cuyahoga river' between the designated termini, with the rights and franchises which we have mentioned, together 'with the right or franchise to exercise the state's power of eminn t domain in order to appropriate and acquire all property necessary to carry out and perform said grant and make the same effective' and that the acts of defendants, having legislative sanction of the state, impair plaintiff's contract.