174 P. 172 | Utah | 1918
Lead Opinion
The plaintiff, hereinafter called appellant, commenced this action against the Columbus Extension Mining Company, the Rexall Silver & Copper Mining Company, the Columbus Rex-all Consolidated Mines Company, and Alexander H. Cowie to condemn a right to use a certain mining tunnel in common with the defendant the Columbus Rexall Consolidated Mines Company, a corporation, hereinafter, designated respondent. The defendants other than the respondent, for reasons appearing in the record, may be excluded from consideration on this appeal, and we shall not refer to them again.
The complaint is very long, and we shall, in the briefest possible terms, refer to those portions which are deemed material.
The appellant alleges that it is a mining corporation; that
It is further alleged that said mining claim contains gold, silver, copper, and other precious metals, and that for that reason it is a valuable mining claim, and that the same has been developed only in part; that a certain mining tunnel, marked “T T” on the plat, was constructed, and of which respondent is a part owner as hereinafter stated; that said tunnel, from its portal, marked “P” on the plat, to .the south side line of appellant’s said mining claim, marked “H,” is approximately 3,078 feet in length, of which respondent owns all except 1,888 feet, which is that portion lying immediately south of the point marked “e” on the plat; that the whole length of said tunnel, from its portal to the end thereof, which is some distance north of the northerly side line of appellant’s said mining claim, is approximately 4,700 feet; that the distance involved in this action, however, is that portion only which lies between the south side line of appellant’s said mining claim and the point marked “e” on the plat, being a
The respondent alone answered the complaint, and the hearing was limited to the appellant and respondent.
The appellant produced evidence in support of the allegations of its complaint. The evidence is without dispute that the tunnel is not being used or operated to its full capacity, and that it is feasible and practicable to operate said tunnel so as to permit both the said respondent and the appellant to develop their respective mining claims and the mineral deposits therein, and to transport the ores developed and the waste material resulting from such development through said tunnel over a single track; that, if necessary, turnouts can be constructed at reasonable intervals and at reasonable expense in said tunnel, and side tracks can be laid in such turnouts so as to permit the transportation of the ores and waste material of both appellant .and respondent without inconvenience or interruption; that the capacity of said tunnel is variously estimated at from 500 to 1,500 tons for two shifts each day, or even more, depending on the motive power by which the ores would be transported; and that said tunnel, at the time of the trial, was used to transport only a very small fraction of that amount. Indeed, the evidence is to the effect that the capacity of the tunnel is sufficient to develop an.d to transport the ores and waste material for at least three or four of the best mines in that vicinity.
We remark that the foregoing plat is not intended as correctly indicating the numerous courses of said tunnel. All that is attempted is to give the correct distances in feet and the general direction of the tunnel.
The theory of respondent’s counsel, and upon which they tried the ease, is-best illustrated by what they said after the appellant had produced its evidence and rested its ease. Counsel said that they did not desire to present any evidence “for the reason that the defendant (respondent here) is of the opinion and states with confidence that the law is that no right to condemn a right of way or easement through that tunnel has been or can be shown.” Counsel therefore took
“The court heard the testimony introduced by the parties and arguments of counsel, and thereupon took the matter under advisement. And now, having fully considered the same, the court finds that the evidence in the cause is manifestly insufficient to support the allegations of the said complaint, and that the plaintiff is not entitled to recover against the defendant. ’ ’
Upon those so-called findings the court entered judgment dismissing the action, and appellant insists that the court erred in its findings, conclusions of law, and judgment.
We remark that the mining claim in question is an old patented claim located under the law of 1866, and is but 200 feet in width. The question to be determined on this appeal, therefore, is one of law merely, which may be stated thus: Can appellant, under our statute authorizing the exercise of eminent domain, condemn an easement in or the right to use the tunnel in question for the purposes desired by it?
Comp. Laws 1907, section 3588, as amended by chapter 47, Laws Utah 1909, p. 50, is divided into 13 subdivisions, in which are enumerated the specific purposes for which the right of eminent domain may be exercised. It is not necessary to set forth all of the purposes enumerated in the statute. So far as material here, the section referred to provides:
Appellant contends that the right to condemn an easement in or through said tunnel for the purposes contemplated in this action is granted in the foregoing subdivision. Upon the other hand, respondent contends that the right is not granted.
Comp. Laws 1907, section 3590, subd. 3, also provides:
“Property appropriated to public use; provided, that such property shall not be taken unless for a more necessary public use than that to which it has been already appropriated.”
Subdivision 5 of the section last referred to reads:
“All rights of way for any and all purposes mentioned in section 3588, and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed, or intersected by any other right of way or improvement or structure thereon; they shall also be subject to a limited use in common with the owners thereof, when necessary; but such uses of crossings, intersections, and connections shall be made in the manner most compatible with the greatest public benefit and the least private injury. ’ ’
And subdivision 6 is as follows:
“All classes of private property not enumerated may be taken for public use when such taking is authorized by law.”
At the hearing of the cause in this court some contention was made that that portion of section 3588, supra, Avhich we
We think it is generally agreed that where the right of eminent domain is granted for a particular purpose, then the statute must be given a liberal construction in furtherance of such purpose. Our statute, in clear and explicit terms, grants the right of eminent domain for the purpose of developing the mining industry and for the purpose of developing the'mineral resources of the state, regardless of ownership. Under those circumstances, therefore, the rule of construction that is applied by Mr. Justice Hawley in the case of Douglas v. Byrnes (C. C.) 59 Fed. 28, should be applied. Mr. Justice Hawley, in passing upon the eminent domain act of the state of Nevada respecting the development of mines (C. C.) 59 Fed. at page 31, says:
"The power of the Legislature having been fully recognized and sanctioned, the purpose of the act should not be hampered by any narrow or technical objections. The importance of encouraging the mining industry of this state must be kept in view. This was the object,*423 intent, and purpose of the Legislature in passing the act, and its wisdom, policy, and expediency was thereby determined. A reasonable, fair, just, broad, and liberal view should be taken by the court in interpreting its provisions.”
To the same effect is Butte A. & P. R. Co. v. Montana U. R. Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508.
Mr. Lindley, in discussing the right of eminent domain as applied to mining, in his excellent work on Mines, in volume 1 (3d Ed.) p. 612, says:
"It is manifest, however, that there is a marked tendency, evolutionary in its nature, to break away from the old rigid rules on the subject of ‘public use,’ and to enlarge the definition of the term, so as to make it synonymous with ‘public welfare.’ This tendency is no doubt influenced to some extent by the growth and spread of sociological ideas which seek to influence the construction of constitutions and statutes in the interest of the group instead of the individual, and to authorize the condemnation of private property for any use which stimulates or encourages .the development of the natural resources of the country. As to what uses will accomplish this purpose, each state must determine for itself. As there exist marked differences in environment and economic conditions, it is. hardly likely that uniform decisions in all the states will ever be reached. But the test of ‘public welfare,’ instead of the old doctrine of ‘public use,’ is being gradually extended, with the promise of its becoming the prevailing doctrine in most jurisdictions.”
In view that the business of mining is necessarily highly speculative; that the prices of most metals are fluctuating so that to mine a certain grade of ore may be profitable this year while the price may be so much lower the next that it would be ruinous to attempt to mine it; that the contemplated ore bodies may be much smaller in extent than was expected; and numerous other things that might be mentioned — the joint use of a mining tunnel of necessity must be temporary only. It is for that reason that some equitable method of determining and fixing the compensation for the joint use must be devised which must be based upon all the known facts and circumstances, and must be such as to reflect justice in each case. To fix the compensation in a lump sum might defeat the very end in view. Some just method of compensation is all the law contemplates, and that is all that can be required in each case. It is manifest that in this case no effort whatever was made by appellant and respondent to arrive at an understanding regarding either the character or extent of compensation, nor with regard to the nature and extent of the use of the tunnel by appellant; and it is equally manifest that so long as the respondent can treat the tunnel in question as its own private affair, to which no one may gain access except by its consent, no such an understanding or agreement is possible.
Respondent’s counsel, however, insist that it has been decided by respectable courts that the use of the tunnel contemplated by the appellant cannot be condemned under statutes similar to our own. The case of Amador-Queen M. Co. v. Dewitt, 73 Cal. 482, 15 Pac. 74, is cited and relied on. In that case the right to a joint use of the mining tunnel was denied upon the sole ground that the joint use which was sought was for a private and not for a public use. In view that the right of condemnation in cases of rights of way for
It is, however, further contended that the decision of Headrick v. Larson, 152 Fed. 93, 81 C. C. A. 317, is decisive of the question involved here. It is contended that in that case it is squarely held that the joint use of a mining tunnel may not be condemned under an eminent domain statute similar to' ours. It may be that the court which rendered the decision in that case may ultimately arrive at the conclusion contended for by counsel, but it is manifest that it did not do so in that case, all of which is demonstrated by having recourse to the language used by the court in deciding that case. After discussing the questions involved in that case at some length, Mr. Justice Gilbert, United States Circuit Judge, closes the opinion thus:
“But the present suit is not a suit to condemn a right of way over the tunnel. It is a suit in equity to compel thé joint use of a right- of way already condemned by another, and to obtain the right to participate in the benefits thereof, on the theory that the condemnation has been made for a public use, and that the applicants are members of the public for whom such condemnation has been adjudged. There is no allegation showing the necessity of such common use, and nothing to show that the appellants cannot proceed and condemn a right of way for a. tunnel, as was done by the appellees.”
“Under the statute of eminent domain the law seems to be well settled that, where two public uses can stand together without material impairment or impediment of one by the other, they must so stand.”
That is the conclusion also of Mr. Chief. Justice Shaw in the case of Boston, etc., Co. v. Boston, etc., Co., 23 Pick. (Mass.) 360-398, where, in referring to the two uses there in question, the Chief Justice said:
“Both uses may well stand together, with some interference of the latter with the earlier, which may be compensated for by damages. ’ ’
In principle is there, can there be, any difference between superimposing one public, easement or úse upon another public easement or use, as was done in the case last above cited, and in the cases of Nash v. Clark, 27 Utah, 158, 75 Pac. 371, 1 L. R. A. (N. S.) 208, 101 Am. St. Rep. 953, 1 Ann. Cas. 300, Tanner v. Canal & Irr. Co., 40 Utah, 105, 121 Pac. 584, and Salt Lake City v. East Jordan Irr. Co., 40 Utah, 126, 121 Pac. 592, and a case like that one at bar? The mere fact that in this case the tunnel in question is owned by respondent in no way affects the principle of law announced in the foregoing eases. In those, as in all other cases where it is sought to acquire property or rights other than by the exercise of the power of eminent domain, the burden of proof rests upon the eondemner to show that the use is a public use, and that its exercise is necessary in the particular case. Both of those questions in this state must be determined by the court and both must be determined in favor of the eondemner, as preliminary questions before the'property or the right to an easement therein can be condemned. In view that the appropriation of property and the acquiring of an easement therein for the purposes of developing the mineral resources of this state have always been considered as being public uses, we cannot see any escape from the conclusion that the right that appellant seeks to acquire is clearly for the public use. Neither the allegations of the complaint nor the evidence produced in support thereof leave any room for doubt on that question.
In conclusion'we desire to state that there are many allegations in the complaint which to our minds seem unnecessary, while there are others that might well be more specific and certain. The same may be said of the answer. The defects in the pleadings are no doubt due to the fact that.the law upon this question had never been settled by this court, and that both parties, if we may say so, were merely feeling their way.
For the reasons stated the judgment is reversed and the cause is remanded to the district court, with directions to grant the appellant a new trial, and to proceed with the case
Dissenting Opinion
I dissent. It is conceded that appellant is not seeking to exercise the right of eminent domain on the ground that respondent’s tunnel is to be used “for a more necessary public use” than the one for which it was originally constructed, and is now being continuously occupied and used in the operation and development of respondent’s mines. In fact, the only contention made by appellant is that it seeks to acquire the right to a mere temporary use, a use in common with the respondent, for the express purpose of enabling appellant to make quick development of its mineral lands, mine, extract, and market its ores at a nominal expense, and with less inconvenience to itself than under the circumstances and existing conditions could otherwise be done in the construction of a tunnel by its own labor and at its own cost. That the contemplated use of the tunnel in question by appellant is precisely the same use for which the respondent, at great expense, constructed it, and is now continuously using it in the development and operation of its mines, is also a conceded fact. It is also apparent from the record here that appellant’s mine, for which a right to a joint use of respondent’s tunnel is sought, is only partially developed. The same is shown to be true of respondent’s mine. The mines of the respective parties are in the prospective stages only. Whether the appellant would pass one mine car of material from its mine over respondent’s track each day or a thousand is purely problematical. The future needs of respondent in that regard are equally so. Appellant’s right to acquire an interest in the tunnel must be predicated upon either some express legislative enactment or some reasonable intendment of our statute, and then again some reasonable necessity for the taking must first be shown. Lewis, the distinguished author, in his work on Eminent Domain, after an exhaustive review of the
" First. All property held for public use is still subject to the eminent domain power of the state, with this exception: That it cannot be taken to be used for the same purpose in the same manner. * * * The 'Legislature cannot take the property of A., such as a tollbridge, and transfer it to B., to be still used as a tollbridge by B. in the same manner as it had been previously used by A. This would be taking the property of A., and giving it to B., which the Legislature is powerless to do. 'Where there is no change in the use there cannot be a change in ownership under the law of eminent domain.’ Suburban R. R. Co. v. Met. W. S. El. R. R. Co., 193 Ill. 217, 233, 61 N. E. 1090. This rule is a restriction upon the power of the Legislature, and is doubtless limited to the cases where the result of the act would be to transfer the property of A. to B., both being private individuals or corporations. * * *
"Second. The right to take property already devoted to public use must be given in express terms or by necessary implication, * * and then the taking can be only to the extent of the necessity, and that necessity must arise from the nature of things over which the corporation desiring to take has no control, and not from a necessity created by such corporation for its convenience or economy.’’ (Section 440.)
The same ajithor, further on in the text, says:
"A taking which is no interference, present or prospective, with the prior use, is not within the rule. Consequently it is generally held that an easement or joint use may be appropriated, where the two uses are not inconsistent, and the second is no interference with or impairment of the first.” (Section 441.)
I cannot concur in the conclusions arrived, at by Mr. Chief Justice FRICK, that, under our statutes referred to in his opinion, the appellant may acquire a right to a temporary use in the respondent’s tunnel, for the following reasons: (1) No contention is made, nor is it shown, that appellant has not now the same facilities to construct a tunnel for its mine that the respondent had to construct its tunnel. (2) The mere fact that appellant might more expeditiously, and with less expense and inconvenience’ to itself, develop and mine its ores by the use of respondent’s tunnel, are not sufficient in law to entitle it to such use.
I am not unmindful that the future welfare of our commonwealth is largely dependent upon the development of the mineral resources of the state. However, as to the privi
Rehearing
On Application for Rehearing.
Respondents’ counsel have filed a petition for a rehearing. While a number of grounds are stated in the petition, yet nothing really new is advanced.
Counsel, in their brief, however, argue with much vigor that the. decision, if permitted to stand, will have disastrous results for many reasons. Indeed, the arguments advanced, in their nature and essence, differ little from those advanced in opposition to the-decisions in Munn v. Illinois, 94 U. S. 113,
It is contended, however, that if the decision prevails ‘1 any railroad company having a line of road, such, for instance, as the one between Salt Lake City and Park City, or between Salt Lake City and Wendover, may be used in common with the present owners so long as the necessity or convenience of the condemning road might demand. To the objection that such a use was in reality a taking of the road to all practical intents and purposes, the answer would be that, so long as it was open to the use of the real owner to the extent of his demands, the court would see to it that any other railroad company might have a common or joint use up to the limit of its capacity.” The foregoing, no doubt, are some of the consequences which, to counsels’ minds, are “startling to contemplate. ’ ’ Let us assure counsel and all other timid persons that no such startling consequences can or will result from the
“All railroads and other transportation companies are declared to be common carriers, and subject to legislative control; and such companies shall receive and transport each other’s passengers and freight without discrimination or unnecessary delay.”
The necessity of condemning a joint or use in common of a railroad can, therefore, never arise in this state for the mere purpose of transporting freight or passengers, even though the law permitted one enterprise to condemn the easement of another for mere speculative purposes. The necessity for condemning a joint use may, perhaps, arise in some instances for terminal purposes. "When it arises, however, it no doubt will be limited to the actual necessities of the condemning company, and the matter may then be judicially determined. There is little doubt that if the principle that is embodied in the section of our Constitution which we have quoted had been announced at any time prior to the decision of Munn v. Illinois, supra, which was announced in 1876, it would have been more startling to very many persons than is the decision in the case at bar. Counsel’s fears regarding what might happen to our railroads are therefore groundless.
It is also suggested that under the decision as it stands one mine owner might be permitted to condemn a joint use of a mine shaft. This suggestion, it seems to us, is made for the purpose of showing that the decision is impractical and hence unsound. Such a suggestion is, however, not justified by anything that is said in the opinion nor by anything contained in our statute. There always is, and of necessity must be, connected with every mine shaft in operation a certain amount of machinery and appliances. There is nothing in our statute authorizing the condemnation of mine machinery or appliances. It might with as much force be contended that because the joint use of the tracks of one railroad-company may be condemned for a limited purpose a joint use of its machinery, tracks, cars, depots, depot offices, and warehouses
It is further insisted that no rule regarding the measure of damages is laid down in the opinion. As indicated in the decision, no hard and fast rule can be promulgated in that respect. It cannot be determined in advance what method for the ascertainment of compensation should be adopted in all cases. Whether payment should be made on the basis of tonnage, or by the day or month, or otherwise, must be determined by the court from the evidence of experts, of whose knowledge and experience courts constantly avail themselves. Many of the elements arising in joint or common use of property are suggested in the case of Salt Lake City v. Irrigation Co., supra. If .the experience of experts is followed, no great difficulty, if any at all, can arise in that regard.
But we are also told that we have not defined what constitutes necessity in such cases. That, too, is largely a question to be determined in each case. We have stated the facts as they appear from the evidence, and from those facts we did all that could be done in the opinion, namely, state our conclusion, which is that the facts. constitute a prima facie case of necessity in a ease like the one at bar.
It is also asserted that the decision will retard rather than stimulate the development of mining property, because it will permit one mine owner to divide the use of his tunnels, and will thus tend to discourage the construction of mine tunnels. That is certainly a gloomy view to take of the matter. Why should men refuse to develop their own mining property simply because another, by making adequate compensation, may, for a limited time and to a limited extent, use what the owner cannot use?
The argument, as we understand it, is based upon the
Finally, it is insisted that the' opinion in many respects is vague and uncertain. Indeed, counsel who have filed the petition contend that they are unable to grasp either its meaning or its purpose. If it were not for the fact that counsel on the other side have found no difficulty whatever to fully comprehend all that is said and all that is decided in the opinion we might regard the contention as more serious. The contention is, however, one that is frequently found in applications for rehearings. The attorney who loses the case can rarely be reconciled to a decision which is strongly contrary to his contentions. The zeal for his client’s cause, which is commendable if kept within bounds, prevents him from seeing what others see and from understanding what others readily understand.
The application for a rehearing in this case differs from the applications in ordinary cases only in that this case is perhaps of greater importance than the ordinary case and in that the decision is by a divided court. That, however, standing alone, is not sufficient reason why the decision should not stand. The majority of this court must assume the responsibility for a decision, and, after having fully considered the questions presented in the application for a rehearing and
The petition for a rehearing is therefore denied.
