*1 by evidence of facts unattended passion prejudice from which such emotional reactions were fact present agree I not be made. there was not available should that, any evidence; to the defendants in this case such there- fore, the court whether statement included in the judgment of the court or aliunde thereof that the amount $17,000 showed such influence is without foundation and ignored. for that reason must be
HENRIOD, J., concurs in the result.
KENNECOTT COPPER CORP. v. SALT
LAKE COUNTY et al. (250 No. 938.) 7639. Decided November P. 2d *2 taxing property by Taxation, J., sec. 800. Valuation 61 C. See Jur., Taxation, sec. 696. 51 Am. authorities. (now deceased), Parsons, A. D. M. McCrea C. C. Wm. Behle, City, Moffat, for A. Salt Lake appellant. Calvin Thurman, Moss, County, Atty., T. Salt Frank E. William City, Lake for respondent. Hanson, Taylor, McCullough, Don Hal Leland J.
G. S. City, Gilmour, for intervenor M. Lake and respon- C. Salt dent.
WADE, Justice.
Plaintiff, Kennecott from Corporation, Copper appeals judgment dismissing brought a this action to recover taxes question under The taxes in were levied on paid protest. tailings Magna at millsite and Arthur plaintiff’s dump County. Tax in Salt Lake The State Commission fixed the valuation acre. assessed at per $45.78 millsite, tract, The a 982.42 acre is located on a sloping tailings 6,258.93 tract, hillside with a acre dump, ground adjoining it on the flat Before the below. millsite tailings grazing were lands used dump, tailings grounds The are covered with purposes. dump tailings average feet, they to an of 36 depth cover approxi- mately square miles, edge ten dyke around the outer has been constructed and a ditch to catch the waters which through constantly tailings drain and contains copper From 1939 to precipitates. the amount of copper taken from water was from as low 148.101 as pounds 1,224,567 in 1946 to as much as in 1940. pounds This copper Tax reported State Commission as a of the part tailings taxing The purposes. mine of the net proceeds they ground are dumped where of the become have ground for destroyed of the the value and have completely away 13 miles are about These tracts purposes. mines pit from plaintiffs open separated and completely are trans- here Bingham the ores processed from which at adjustable for readily are two tracts rail. These ported reducing together gravity ores. process in the for in the as one tract assessed were properly two tracts grade much is as dump ore the of low reduction mill proper as plant of the ore concentration a part convenient without a mill could operate no such because waste materials. place neighborhood to the in this similar
Unimproved at natural state are assessed tract in its $5.44 millsite *3 tailings acre, tract similar to the dump and lands per $6.86 are at from $20.27 in its natural state assessed $4.14 However, tract similar to there is 632-acre acre. per tailings were both in their tract when those tracts harvesting salt, being state, now used natural at acre. assessed per $66.16 (1) is arbi- that this assessed valuation
Plaintiff claims equal uniformity trary, discriminatory and pro- and lacks requirements law, (2) it fails to meet the tection of 1943, defining “full 80-3-1(5), A. “value” and U. C. See. value” to “mean the amount at which property cash just of a due from a solvent would be taken debt payment debtor”, plaintiff’s (3) and are a these tracts mining subject only and claims” and as such “mines 80-5-56, statutory by flat provided acre rate Sec. per $5. A. U. C. 1943. 80-5-56,
We consider the last claim first. Section supra, requires that * * * mining claims, mines and “All metalliferous shall- be * * per $5
assessed at acre which are Millsites severed dumps completely mining from from and located as far the mine and claims as mining are not mines or claims as those terms were County used in the statute. To this effect see Salt Lake Cir., 484, v. Kennecott Corporation, 10 163 F. Copper 2d question which raised the same with reference to the same property between the same parties, South Utah County, Mines 325, & v. Beaver Smelters 262 U. S. 43 S. 577, Ct. L. Ed.
Plaintiff’s second claim is also untenable. Under Sec. 80-5-1, 1943, U. C. A.
“All taxable must be assessed at its cash value.” full The 1947 amendment to 1947, S. L. provision, Ch. 80-5-1, Sec. provides that “All taxable forty must be percent assessed at of its
reasonable cash value.” fair 80-3-1(5), Sec. U. C. A. provides that “ ‘Value’ and ‘full cash value’ mean the amount prop- at which the erty payment would just be taken in of a debt due from a solvent debtor.” This definition defines the phrase “reasonable fair cash value” which was substituted for “full also, cash value” nothing for there is to indicate that meaning a different was intended Although this substitution. the phrase “the amount at which the property would be taken” refers definitely more to the amount at which the creditor would *4 willing be to the accept property than it does to the amount the debtor would receiving, insist on still inherent in this provision is the concept that such amount must also be agreeable to the owner-debtor for the creditor could not take the at an property amount to which the owner-debtor agree. would not words, In other this is a definition of Although “market value.” it speaks in terms of paying debts and not cash, sale for it is the price which would be
435 willing agreed voluntary an owner at a sale between upon willing buy. Am. Jur. a 18 876. to sell and purchaser thing “just in connec It means the same as compensation” 5th Amendment to United tion with “eminent domain.” See I, Constitution, Utah, Article and Constitution States 22; Weeks, Railroad U. S. Sec. Great Northern Co. v. 297 135, 426, L. Ed. & 56 S. Ct. 80 Chesapeake West 532; Co., 662, 894, Potomac Tel. 295 55 L. Ed. U. S. S. Ct. Moyle 201, 882, City, 111
In v. Salt Lake Utah 176 P. 2d 888, we said: cases, “It in eminent elemental domain that the owner is entitled property highest value of the for which best ** put
it could be 879, title, To effect see 18 Am. Jur. under “Eminent many Domain” Sec. and the therein cases cited.
fact that the value of this property purposes destroyed, has been and there no completely sale for it on the market does not mean it is valueless. subject, Domain,” On this under the' title of “Eminent 247, says: Am. Jur. Sec. adaptability sought “The of the land to be taken in eminent do- special purpose may
main for a or use be considered as an element possesses special If the land a value to the owner which money, right can be measured in he has the to have that value con- compensation damages. sidered the estimate of always test, “While market value is occasionally the ultimate it happens property commonly bought taken is of a class not sold, college cemetery as a church public or a or the fee of a street, piece or some property other have an actual owner, ordinary value to the but which under conditions he would approximating unable to sell for an amount even its real value. presupposes willing buyer, As market value test usal breaks case, down such a and hence it is sometimes said that such true; has no market value. In one sense this is it is certain that nothing. reason cannot be taken for necessity From the of the case the value must opinions be arrived at from the of well- persons, upon informed based for which the *5 taking to the owner as con- is the ‘value in use’ is This not suitable. merely to is tra-distinguished done is from the market value. What property purposes for which the is suitable take into consideration purchasers ascertaining all of reasonable would in as a means what may general willing give it, probability to which in a sense value, and not the value the market market be said to be seeking purpose, party special the value to the to condemn for such or it, damages. is the measure applicable, appear, “In order that this rule be it must not that peculiar, property relationship is but of the owner thereto is, advantages peculiar is him more to or less exclusive —that —its having peculiar only, it is value the owner acquire possible without like value others who it.” grazing Here the has become valueless pur- There is no other poses. that could it as company operate being a millsite and as it is now operated. So there little a sale on the possibility market. open But that not does mean that it is worthless has nominal value. Plaintiff does make a profitable of these They going lands. are a aof multi-million dollar busi- ness; it money has much expended these lands preparing for their use and to present other lands for a prepare simi- lar use would be circumstances, Under expensive. making the use highest plaintiff this tract is its best use. The Commission properly considered these ele- determining ments in the assessed valuation. To some extent by using this valuation must be arrived at opinion judgment and sound as to What these lands would probably sell for on the market if there were others who could highest use them for their By changes best use. which plaintiff has made it destroyed has the value of these lands for enhanced their value for mining use in its operation. This it clear makes land is more valuable for that use than it was in its former state. obviously It would be unfair to plaintiff condemn and take this property without paying value for its use, and present it equally would be unfair to respondents to assess at a lower valuation. While a valuation of this *6 to determine than it would be is more difficult being market, not were made on the that does if sales any arbitrary mean that valuation or that there is no is might limit to the amount at which it be assessed. The required is to use and reason- commission sound discretion judgment, and the valuation on able placed requirement. is well within that
Judgment affirmed with costs to respondents.
McDonough, j., concurs.
WOLFE, Justice. Chief
I concur. urged true, determining by
It is as the in appellant, that sought the condemned, market value of lands the be they special are taken not the purpose basis on which the owner is entitled to be avail Its compensated. ability however, for that is an element to con purpose, be arriving value, sidered in at its market the market value being the true measure of compensation. Minneapolis-Saint Sanitary Paul District 201 Minn. Fitzpatrick, may, N. W. 124 A. L. R. 897. Be that as it in the seeking instant case the is not appellant to condenn lands of others. We are concerned with a determination of the fair market value of lands which it now owns and which being has to a use different than put was made of them acquired. when by It conceded the appellant determining value, assessing fair body may market consider the “advantages property, of the earning capacity situation of the productiveness, purpose put, or use to which it is its actual earn- ings, any other factor which influence or enhance its actual
value.”
was sought Also, be if lands were market now, would be appellant for a condemned public they therefor not on the basis entitled to compensation value worthless because their now practically were lands they destroyed, on the basis that had been integral an of a vast profitable were used as mining operation. testimony of Ham-
The fair of the Commissioner import mond of the Tax Commission is that the value of the use of the to Kennecott one factor in the Com- was mission’s determination of valuation. He testi- expressly not fied that Commission did know what would *7 value of the to the lands that such a valuation appellant; by would be difficult determine engaged operation,” “one who is not in Kennecott’s but that
“possibly engineer value”; could [Kennecott’s] determine such a might value of the lands to the appellant be an figure” “astronomical and that such value would not be valuing sound basis the lands for of taxation. purposes He did nega- amdit that the lands would have a nominal or tive value if the appellant’s operation were abandoned. But Kennecott’s operation very has not been abandoned —it is much alive and the lands should be assessed with that fact borne in Certainly mind. an owner of real in the business city district of a cannot of complain his assess- ground ment on the that the business district at some time in the remote and non-foreseeable future shift to a city, different of rendering much of the old busi- ness district property vacant and non-rentable.
Were there a adjacent grazing demand for lands for uses, industrial such fact could be taken into consideration in their higher assessment and a value would doubtless result. Judge.
TUCKETT, District of the Court the opinion pertains I insofar as dissent tailings lands. to the dump Tax case that the
It from the record is apparent tailings of the dump at its valuation Commission arrived solely the value of the land to the This plaintiff. upon testimony Hammond from the of Commissioner apparent tailings he would be dump considered negative mining value if the nominal or plaintiff’s abandoned, milling by measured were but that operations for its valuation its value to use its plaintiff present words, tax In other the Commission purposes $45.73. tailings that the market value of the was dump determined taking by figure forty acre cent of that per per $114.40 arrived at the valuation of $45.73.
It is that the have no other apparent dump use or value for the the refuse except purpose dumping mills, from the aside from the recovered copper precipitates from the and which are taxed under the net proceeds of the provision statute.
The elements to Tax be considered Commission in determining the reasonable fair cash value are the same arriving at a valuation for tax and in the determining of the value in condemnation cases. These were before U. S. principles Court in the case Supreme Northern Weeks, Great Railroad Company 297 U. S. *8 135, 426, 428, 532; 56 S. Ct. 80 L. Ed. wherein the Court said: “The full and true value of the is the amount the just compensation upon taking owner would entitled to he receive as a property by of that the state or the United States in the exertion power of equivalent the of eminent domain. That the value is the of property, money paid taking.” in at the time of the Olson v. United
States,
246, 254,
704,
292 U. S.
54 S. Ct.
The original value they The used. are now for which purpose destroyed. Under has been the lands for of land cases the owner the law to condemnation applicable sought reasonable entitled to the condemned would be be highest to. use the and best market the land for value of taking. Moyle the at time of it could the put which be con- 2d 882. The law City, 176 P. Lake 111 Utah Salt land would value is that the that market templates willing buyer a bring market on a free between willing seller. argue value the
The defendant and intervenor might measured its peculiar, of the lands be properly I do think this is the value not basis proper plaintiff. determining market value. the factor Tax consider properly Commission determining lands, of “use” in the market value of the only this is ing one of the considered in determin- factors determining such The use factor important in condemnation market value both cases and in other involving However, cases the valuation of property. many factor one of elements to be considered arriving bring at a tract land would on an price and free market. While the Court will not substitute judgment Commission, for that the Tax the Court grant taxing should relief where body, appears has based its valuation upon an erroneous so that premise, arbitrary fixing resulted in' assessment an of such value.
CROCKETT, J., being disqualified, does not participate herein.
HENRIOD, J., not participating.