230 F. 343 | 8th Cir. | 1915
This is a companion case to United States of America v. Utah Power & Light Company, 230 Fed. 328,- C. C. A. -, and involves an appeal from the decree of the District Court enjoining the appellant, hereinafter called the defendant, from maintaining and operating its power house, reservoir, pipe, lines and transmission lines upon certain land of the appellee, hereinafter called the plaintiff, in Big Cottonwood canyon, Salt Lake county, Utah. These structures are parts of certain hydro-electric power works constructed by the predecessors of the defendant. They are used to generate electric power for the purpose of operating the street car system and electric light system in Salt Lake City, and for sale to various persons and corporations for light, heat and power. These works include two power plants, called the upper or stairs plant and the lower plant. The upper plant was practically completed prior to May 14, 1896, but was not put into operation until' June 2, 1896. The lower plant was completed and put into operation on or about December 3, 1896. Of the upper plant, the power house, a portion of the reservoir, and most of the pipe line connecting them are on land of the plaintiff. The remainder of the reservoir and pipe line are on the land of the defendant. Of the lower plant the diverting dam and a portion of the flume are on property of the plaintiff, but the power house, the pipe line and the remainder of the flume are on the land .of the defendant Near the upper power house are two small cottages and outbuildings, claimed by defendant to be necessary for the use of employés engaged in attending to the plant. Defendant further claims that the ground occupied by the power house and cottages is no more than is necessary for the maintenance of tire plant; that the use of this land is necessary for the successful operation of the plant and the generation of electric power. A transmission line, necessary for transmitting power from the power house to Salt Lake City, was constructed upon land of the plaintiff in 1895. The upper power plant and the transmission line were constructed by the Big Cottonwood Rower Company, which conveyed them, on August 31, 1897, to the Union Light & Power Company, which, in turn, conveyed them, on December 30, 1899, to the Utah Power & Light Company, by which latter company they were conveyed, on January 2, 1904, to the Utah Light & Railway Company, the original defendant. The lower plant was constructed by the Utah Power Company, which still, technically, owns and operates it. However, the entire capital stock of the Utah Power Company was purchased, prior to August, 1901, by the Consolidated Railway & Power Company, and sold., on January 2, 1904, to the Utah Light & Railway Company, the original defendant. Subsequently to the entering of the decree in the trial court all the properties, rights, privileges, powers and franchises, and all and every interest of the Utah Light & Railway Company became vested in the Utáh Light ■& Traction Company, defendant herein; and by order of court the .latter company was substituted
The plaintiff filed its bill praying the same relief as in Utah Power & Light Company v. United States, heretofore decided. The defendant by its answer interposed the same defenses as in that companion case; and, in addition thereto, the following, deemed to be peculiar to the instant case:
(1) The act of Congress of 1896 did not supersede sections 2339 and 2340 of the Revised Statutes, if at all, until general regulations thereunder had been fixed by the Secretary of the Interior.
(2) Rights of way for the structures upon the plaintiff’s land vested prior to May 14, 1896.
(3) The act of Congress of 1896 did not apply to the structures involved in this action.
The defenses common to both cases have been resolved by this court against the defendant in the case of Utah Power & Light Company v. United States, and reference is made to the opinion therein filed for the reasoning upon which that decision was based. We, therefore, address ourselves to the three special defenses above enumerated.
The object of Act May 14, 1896, as heretofore determined (209 Fed. 554, 126 C. C. A. 376), was to substitute the permit system, therein provided, for the vested easement system, theretofore recognized, as the trial court properly decided; but we believe the defendant was entitled to whatever rights it had acquired by appropriation and construction prior to the enactment and approval of that act of substitution. These rights are entirely independent of and discon
It is not intended herein, nor is it deemed necessary, to make specific directions respecting the structures of defendant upon plaintiffs land involved in this controversy. Such matters can be satisfactorily re