The judgment of the court below is therefore reversed, and the cause remanded, with directions to make findings in favor of plaintiff, and to enter judgment in her favor in accordance with the prayer of the complaint. Costs to appellant.

MCCARTY, C. J., and FRICK, J., concur.

BRIGHAM CITY v. RICH et al.

No. 1922. Decided July 17, 1908 (96 Pac. 220).

1. PUBLIC LANDS-GRANT TO STATE-RELATION OF TITLE. The enabling act (Act July 16, 1894, c. 138, 28 Stat. 107), under which Utah was organized as a state, contained a grant by Congress to the state of a stated number of acres of land for specified purposes to be selected by the state, under the direction of the Secretary of the Interior from unappropriated public lands within the state, the language of the grant being, "The following grants of land are hereby made to said state for the purposes indicated namely," followed by a statement of the objects and the number of acres for each. Held, that the grant was one in praesenti, and that on a selection by the state of land within its terms, which selection was afterward approved by the Secretary of the Interior, the state's title related back to the date of the grant, or at least to the date of such selection.1

2. EMINENT DOMAIN-CONDEMNATION PROCEEDINGS-INTEREST SUBJECT TO CONDEMNATION. Plaintiff city commenced proceedings to condemn a part of a tract of land the legal title to which was in the United States, and a right of way over the remainder for a public purpose, making defendant a person who was in the occupancy of the land under a contract with the state for its purchase by which the latter had agreed to, and had, in fact, selected the land under a grant made to it by Congress. The court made an order as authorized by statute, giving the city the right to enter upon and occupy the land on executing a statutory bond to pay the compensation to be awarded therefor. Subsequently, and pending the proceeding, the selection made by the state was approved; also the defendant in possession assigned his right in the land to a corporation of which he was president, which received a patent therefor from the state, and

1 Brigham City v. Chase, 30 Utah 410, 85 Pac. 436.

was afterward made a party to the proceedings. Held, that the original defendant had an interest in the land when the proceeding was commenced, which was subject to condemnation, and was the same interest which passed to the defendant corporation and ripened into a title relating back to the contract of sale by the state subject to the rights already acquired by plaintiff under the order of condemnation and occupancy; that the only right acquired by the corporation in the land condemned was the right of its assignor to receive the compensation awarded therefor.

Appeal from District Court, Box Elder County; W. W. Maughan, Judge.

Proceeding by Brigham City against J. Y. Rich and others to condemn land for public use. Judgment for plaintiff, and defendant the Box Elder Power & Light Company appeals.

AFFIRMED.

E. A. Walton, Booth & Lee, and Dey & Hoppaugh for appellant.

W. H. King and H. P. Henderson for respondent.

FRICK, J.

On the 30th day of October, 1902, Brigham City, the plaintiff herein, a municipal corporation, commenced this proceeding in the district court of Box Elder county, Utah, against the Brigham City Electric Light Company, a corporation, J. Y. Rich, and Charles Knudsen to condemn a certain parcel of land, together with a right of way for a pipe line to be used for the purpose of constructing and maintaining thereon an electric light plant by said Brigham City, with a view of producing and furnishing lights for its own use and for the use of the inhabitants of said city. The complaint contains all the necessary allegations required in such a proceeding by the statutes of this state, together with a particular description of the parcel and strip of land sought to be condemned, and a general description of the land from which the parcel and strip of land were to be taken by

governmental subdivision, township and range. By subdivision 2, section 3594, Revised Statutes 1898, it is provided that "the names of all owners and claimants of the prop erty" must be styled defendants. By section 3595, Revised Statutes 1898, it is provided that all persons in occupation of, or claiming an interest in, the property described in the complaint, though not named therein, may appear and defend. In the complaint the defendan:s above named were described as joint claimants of the property described. We make these preliminary remarks for reasons that will hereafter appear.

On motion of Brigham City, and after service of notice upon the defendants above referred to, the court on November 11, 1902, made an order under the statute, giving Brigham City the right to enter upon and occupy the parcel and strip of land upon executing the statutory bond which was duly executed, approved, and filed, and said city thereafter took possession of said parcel and strip of land, and erected its electric light plant and pipe lines thereon. No further proceedings seem to have been taken until March 9, 1904, at which time the defendants above named filed their joint answer in which they admitted the corporate capacity of Brigham City and denied all other allegations of the complaint. On September 9, 1904, the three defendants filed an amended answer, in which they assailed the jurisdiction of the court upon the ground that prior to April 30, 1903, the title, both legal and equitable, to the land in question, was in the United States; that the state of Utah on said date acquired the title to said lands from the United States; and that on August 25, 1903, the state of Utah conveyed the same to the Box Elder Power & Light Company, a corporation, and that said corporation claimed the exclusive ownership and right of possession of said land, and that it was the successor to all rights and franchises acquired by the defendants Rich and Knudsen. After this, on March 29, 1904, the court, on motion of Brigham City, the Box Elder Power & Light Company was made a party defendant to the action. On the 1st day of March, 1907, the said company entered its

appearance in the proceeding, and from thence became a defendant therein. On July 25, 1907, said On July 25, 1907, said company filed its separate answer, wherein it admitted the corporate existence of Brigham City, and denied all the other allegations of the complaint, and further averred, in substance, that in February, 1903, it was duly incorporated under the laws of the state of Wyoming, and that it had complied with the laws of this state relating to foreign corporations. It also assailed the jurisdiction of the court for the same reasons stated in the answer of the other defendants, and claimed exclusive ownership and right of possession to the lands described in the complaint by virtue of the conveyance from the state of Utah, as above stated. With this answer it filed a petition and bond for the removal of the cause from the state to the federal court upon the ground of diverse citizenship, and as exclusive owner of the premises. The case was removed, but subsequently remanded by the federal court to the state court. The case after pending for about five years was finally tried to the court without a jury. After a hearing the court made its findings, which are very voluminous. The findings cover all the essential facts authorizing condemnation under the statutes of this state, and we shall only refer to such special matters therein as are deemed essential to an elucidation of the points hereafter discussed. The court found that prior to the commencement of this proceeding Brigham City had commenced the construction of an electric light plant to be operated by water power; that the water to generate such power had to be conducted through a pipe line, and that a portion of such pipe line had been constructed up to a point where it became necessary to cross the lands described in the complaint; that it was necessary to cross said lands with said pipe line, and an additional parcel of said land was necessary for the erection of a power house; that Brigham City, with the view of obtaining such parcel and strip of land, for the purposes aforesaid, prior to the commencement of these proceedings, offered to purchase the same from the first three defendants named, and that they refused to sell the same, but claimed to be the owners there

of, and that pursuant to such refusal Brigham City commenced this proceeding to condemn the land for the purposes aforesaid. It is also found that at and prior to the time this proceeding was commenced that the defendants, other than the appellant, "were the owners and were occupying and were in possession, and claimed to be the owners, occupants, and in possession," of the land described in the complaint. It is further found that on the 5th day of February, 1902, the land described in the complaint was surveyed and unappropriated, unoccupied public domain of the United States, nonmineral in character, and open to location and purchase; that on said day the defendant J. Y. Rich, of lawful age, and a citizen of the United States, entered into an agreement with the state of Utah whereby he made application for the se lection by the state of Utah of said land, designating the same in an affidavit made and filed by him as grazing lands; that such selection should be made by the state of Utah under the grant of lands to it by the United States; that, “by said application and agreement, said Rich agreed to purchase said land after it had been selected by the state of Utah at the rate of $1.50 per acre on ten years' time in accordance with the provisions of the laws of this state governing land sales" that on said date he paid the sum of $40 to the state of Utah upon said agreement. It is further found that the state of Utah in pursuance of said agreement, on said date, made a selection of said lands in writing under the grant of lands to it by the United States; that such selection was duly and regularly made according to the rules and regulations adopted by the Secretary of the Interior of the United States; that the same was on said date approved by the register and receiver of the United States Land Office at Salt Lake City, and thereafter, on the 30th day of April, 1903, said selection was approved by the commissioner of public lands and the Secretary of the Interior of the United States. It is also found that, immediately after making said agreement with the state of Utah, said Rich entered into the possession of said lands and that he and the defendants Charles Knudsen and the Brigham City Electric Light Com