Coeur D'Alene Mining Co. v. Woods

• Decision Date: 28 May 1908
• Citation: 96 P. 210,15 Idaho 26
• Parties: COEUR D'ALENE MINING COMPANY, Plaintiff, v. WILLIAM W. WOODS, Judge, Defendant
• Court: Idaho Supreme Court

96 P. 210

15 Idaho 26

COEUR D'ALENE MINING COMPANY, Plaintiff, v. WILLIAM W. WOODS, Judge, Defendant

Supreme Court of Idaho

May 28, 1908

WRIT OF REVIEW-EMINENT DOMAIN-AUTHORITY TO EXERCISE RIGHTS-PUBLIC USE-A MORE NECESSARY PUBLIC USE-GREATEST PUBLIC BENEFIT-LEAST PRIVATE INJURY.

1. Under the provisions of sec. 4962, Rev. Stat., a writ of review may be granted when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain speedy and adequate remedy.

2. Under the provisions of our statute granting the power of eminent domain, the district court, or judge thereof, has jurisdiction to determine the right and necessity for the exercise of that right, and if, on a hearing of an application to appoint commissioners to assess damages, he rejects certain evidence offered in regard to the location of the right of way sought to be condemned, or the necessity thereof, his action may be reviewed on an appeal, but cannot be reviewed on certiorari.

(Syllabus by the court.)

Original proceedings for writ of review. On motion, writ quashed.

Motion to quash the writ sustained, and the writ quashed and the proceedings dismissed. Costs awarded to the defendant.

Gray &amp Knight, and Albert H. Conner, for Plaintiff, cite no authorities on points decided.

Walter A. Jones, John H. Wourms, W. A. Cleland, and Richards & Haga for Defendant.

In relation to such proceedings as the one now before this court, this court has declared: "The court should always . . . . confine its inquiries to the question as to whether or not the action complained of was beyond and in excess of the jurisdiction conferred. . . . " (McConnell v. State Board etc., 11 Idaho 652, 83 P. 494.)

In order that this writ may issue under our statutes, three things must appear: 1. That the court below exceeded its jurisdiction; 2. That there is no appeal provided by law from the judgment or decision of the court; 3. That there is no other plain, speedy or adequate remedy. If any one of these is wanting, the writ cannot be granted. (People v. Lindsay, 1 Idaho 398; Canadian Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 259; Bennett v. Wallace, 43 Cal. 25; Faut v. Mason, 47 Cal. 7; Milliken v. Hubber, 21 Cal. 166; Tucker v. Justice's Court etc., 120 Cal. 512, 52 P. 808.)

Sec. 4968 limits the inquiry as to the question whether the lower court regularly pursued the authority vested therein by law. (Hoffman v. Lewis, 31 Utah 179, 87 P. 167; McConnell v. State Board etc., 11 Idaho 662, 83 P. 494; Gunderson v. District Court, 14 Idaho 478, 94 P. 166; City of Los Angeles v. Young, 118 Cal. 295, 62 Am. St. Rep. 234, 50 P. 535; Harris v. Barber, 129 U.S. 366, 9 S.Ct. 314, 32 L.Ed. 697.)

As to the questions arising under the issues of fact joined by the pleadings, there is an adequate remedy at law provided by appeal. (Sec. 9, art. 5, Idaho Const.; sec. 5223, Rev. Stat.; State v. Superior Court (Wash.), 89 P. 879; State v. Superior Court, 43 Wash. 91, 86 P. 206; Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916; Wetzel v. Superior Court, 3 Cal.App. 408, 85 P. 858; State v. Superior Court, 44 Wash. 554, 87 P. 814.)

The trial court having jurisdiction of both the subject matter of the action and the parties to the action and proceeding according to the statute, this proceeding will not lie, at least before some final determination of the matter complained of. (Sievers v. Garfield Co., 11 Colo. App. 147, 52 P. 635; People v. Lindsay, 1 Idaho 401; Schwartz v. Garfield Co., 14 Colo. 44, 23 P. 85.)

The order appointing commissioners complained of in this proceeding, being an interlocutory order, an adequate remedy is provided by preserving any error committed by the court by bill of exceptions, whereupon such question can be heard on appeal from the judgment. (Sec. 9, art. 5, Idaho Const; Matter of Paige, 12 Idaho 415, 86 P. 273; 2 Pl. & Pr. 90, 95, note 1; State v. Superior Court (Wash.), 89 P. 880; Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916; State v. Superior Court, 44 Wash. 554, 87 P. 814; Hoffman v. Lewis, 31 Utah 179, 87 P. 169; Wetzel v. Superior Court, 3 Cal.App. 408, 85 P. 858.)

The question as to the right of the court to appoint commissioners in condemnation proceedings can be determined on appeal. (Spratt v. Helena etc. Co. (Mont.), 94 P. 639.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an application for a writ of review to review, vacate and set aside the action of Honorable William W. Woods, judge of the first judicial district in and for Shoshone county, in making an order appointing commissioners to assess and determine the damages which the plaintiff will suffer by reason of the appropriation and condemnation of a right of way across the plaintiff's premises in said county, and to set aside the order holding that a necessity existed for the condemnation and appropriation of lands for a right of way for the Idaho Northern Railroad Company across said premises, and the plaintiff prays that this court ascertain and adjudge that the grounds and premises mentioned and described in said railroad company's complaint, which said railroad company proposes to condemn as and for a right of way for its railroad, are already applied to a public use and constitute a public use under the constitution and laws of the state of Idaho, and that the same now are applied to a more necessary and important public use than that to which said railroad company proposes to apply the same.

It appears that notice was served upon this plaintiff, that said railroad company would apply to said judge for the appointment of commissioners to assess and determine the damages which this plaintiff would suffer by reason of the appropriation and condemnation of said lands. Prior to that hearing, this plaintiff served upon the attorneys for the railroad company its answer in said condemnation suit, and caused the same to be filed with the clerk of said court, and prior to the hearing upon said motion, filed its objection to the appointment of commissioners.

It further appears that upon the hearing of said application for the appointment of such commissioners, the railroad company, for the purpose of showing its right to have such commissioners appointed, introduced two witnesses, who are civil engineers, one of whom was chief engineer of said railroad company, and the other was an engineer who had the contract for the construction of the railroad involved in this case. One of them testified, in effect, that from his experience as a railroad engineer, the line of road as located across the property of the mining company was at the proper place, and that the location involved was the practical and proper location for such railroad; that it would not be proper to locate it either on the north or south rim of the mountain or gulch, as the mountain was winding and sinuous, and that it would make a very crooked line to locate it there, and a hard line to operate and construct. The other engineer testified that he was engineer in chief of said railroad company, and that he surveyed and located the line of road across the mining company's placer claims. He testified that his main object was to get the most practical line without interfering with the Coeur d'Alene Mining Company's work and property, and that the road as located is, from a railroad stand-point, the practical route for building the road across the plaintiff's mining claims; and also testified that by an expenditure of an additional seventy or eighty thousand dollars and putting a few more curvatures in the road, and making a few cuts, the road could be built along the rim of the gulch or valley.

At the close of the railroad company's evidence, the mining company called a witness and offered to prove by him the material affirmative allegations of the answer, and also offered to prove the same by other witnesses, but, under objection, the offer was rejected; the court thereby in effect holding that the action of the engineers in selecting the line was conclusive and that he would not inquire beyond that, and that the question of whether or not another feasible line could be found that would do less injury to the mining company would not be considered by him, and he refused to hear any...