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 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:
'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. That the defendant W. W. Ferguson refuses to sell, alleging that he has contracted to sell to the other defendants or some of 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.'
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.
