The defendant in error has moved to dismiss the case for want of jurisdiction in this court. The essential issues of fact were decided against the plaintiffs in error,
'2. Said Barrett stated to said Tyler & brought within the ruling in Telluride Power Transmission Co. v. Rio Grande Western R. Co. 175 U.S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245. The corporations in this case were parties in that case, and so were Nunn and Holbrook. The same public interests were in opposition, and the power company relied for rights in Provo ca non on § 2339 of the Revised Statutes of the United States [U.S.C.omp. Stat. 1901, p. 1437], as the company does in this case, and the rulings on those interests and rights constituted the vital questions in that case as they do in this. It was pointed out there that, 'in order to establish any rights
'3. This condition was accepted by said the defendants to prove their priority of possession, or at least to disprove priority on the part of the plaintiff.' And it was
'4. A short time thereafter, to wit, on 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.'
After discussion it was also observed: '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
'5. The said Barrett sent three times to 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.'
'6. Said Barrett was taken sick and did no rights under § 2339 [U.S.C.omp. Stat. 1901, p. 1437], none could be taken from them. But a violation of the 14th Amendment of the Constitution of the United States is claimed by both the power company and by Nunn, and the latter claims,
'7. On the 1st day of May ensuing the which he was entitled as a citizen of the United States.
The deprivation of the rights of the plaintiffs in error under the 14th Amendment was accomplished, it is said, by the court's assuming to try without the assistance of
'8. The existence of the two policies was those rights depended. In other words, that the district court assumed to determine, and did determine, all conflicting or adverse claims to the property, and submitted only to the jury the questions of compensation and damages. This action, it is asserted, was contrary to the meaning of the statute of the state, or, if not so, the statute is void.
With the latter objection we only are concerned, and it is enough to say in answer to it that the invalidity of the statute was
'9. The two policies had been overlooked as a ground of error on the appeal taken to the supreme court of the state. It appears for the first time in the petition for the writ of error from this court. Nor did the supreme court of the state pass upon the action of the district court in view of its unconstitutionality. Indeed, it found it unnecessary to pass upon that action except in the most general way. The court said:
'10. Tyler & Rutherford had found great the refusal of the court to instruct the jury as requested, upon the instructions given to the jury, and upon the facts found by the court. Under the view taken these questions become unimportant, as neither of the appellants were injured in their rights; nor were either entitled to any damages under the facts shown in this case. The instructions were, at least, as favorable to the appellants as they had a right to expect.'