We are to answer the questions that arise on this record in the light of the findings of fact made by the circuit court to which no exceptions were taken.
Those questions are two: First, had the circuit court jurisdiction to entertain the action? And, if so, second, did the title set up by the plaintiff company show a right of possession of the land in dispute as against the title of the defendants?
It is claimed by the plaintiff in error that as, at the time when the action was originally brought in the district court of the territory of Idaho, the Washington & Idaho Railroad Company, the plaintiff, was a corporation organized under the laws of Washington territory, and the Coeur d'Alene Railway & Navigation Company, defendant, was a corporation organized under the laws of Montana territory; and, as the Northern Pacific Railroad Company was not really a party to the action, there was no right to remove the cause from the state court, whose jurisdiction over the case had attached under the terms of the act of July 3, 1890, providing for the admission of Idaho into the Union. The argument is based on the language of the eighteenth section of that act, wherein it is provided that 'in respect to all cases, proceedings, and matters now pending in the supreme or district courts of the said territory at the time of the admission into the Union of the state of Idaho, and arising within the limits of such state, whereof the circuit or district courts by this act established might have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases, the said circuit and district courts, respectively, shall be the successors of said supreme and district courts of said territory; and in respect to all other cases, proceedings, and matters pending in the supreme or district courts of said territory at the time of the admission of such territory into the Union, arising within the limits of said state, the courts established by such state shall, respectively, be the successors of said supreme and district territorial courts; and all the files, records, indictments, and proceedings rolating to any such cases shall be transferred to such circuit, district, and state courts, respectively, and the same shall be proceeded with therein in due course of law; but no writ, action, indictment, cause, or proceeding now pending, or that prior to the admission of the state shall be pending, in any territorial court in said territory, shall abate by the admission of such state into the Union, but the same shall be transferred and proceeded with in the proper United States circuit, district, or state court, as the case may be: provided, however, that in all civil actions, causes, and proceedings in which the United States is not a party transfers shall not be made to the circuit and district courts of the United States, except upon written request of one of the parties to such action or proceeding filed in the proper court; and in the absence of such request such cases shall be proceeded with in the proper state courts.' 26 Stat. 215, § 18.
This language is interpreted by the plaintiff in error to mean that no case can be transferred to the federal courts if the parties to it could not have gone into such courts at the time the action was brought, if such courts had then actually existed; and the contention is that, as at the time of the commencement of this action the Washington & Idaho Railroad Company was a resident, citizen, and inhabitant of the territory of Washington, and the Coeur d'Alene Railway & Navigation Company was a resident, citizen, and inhabitant of the territory of Montana, no suit either by or against either of such corporations could have been removed, transferred, or commenced in a federal court on the ground of diverse citizenship.
It should be observed that, while it is true that Montana and Washington were in a territorial condition when this suit was brought, they both had become state-the former on the 8th, the latter on the 11th, of November, 1889 (26 Stat. 1552, 1553)-before the filing of the petition for removal.