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 Horse-Shoe Mfg. Co. v. Rhode Island Horse-Shoe Co. 154 U.S. 635, 24 L. ed. 368, 14 Sup. Ct. Rep. 1180.
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 comitting 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, 18 L. ed. 164; Millingar v. Hartupee, 6 Wall. 258, 18 L. ed. 829; Daniels v. Tearney, 102 U.S. 415, 26 L. ed. 187; Sharpe v. Doyle, 102 U.S. 686, 26 L. ed. 277; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257. 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 of the United States (18 Stat. at L. 482, chap. 152), and upon certain 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.