Coombs v. Salt Lake & Fort Douglas Railway Co.

• Decision Date: 23 February 1895
• Docket Number: 547
• Citation: 11 Utah 137,39 P. 503
• Parties: MARTHA ANN COOMBS, APPELLANT, v. SALT LAKE & FORT DOUGLAS RAILWAY COMPANY, UTAH CENTRAL RAILWAY COMPANY, AND JAMES McGREGOR AND CLARENCE CAREY, RECEIVERS, RESPONDENTS
• Court: Utah Supreme Court

39 P. 503

11 Utah 137

MARTHA ANN COOMBS, APPELLANT, v. SALT LAKE & FORT DOUGLAS RAILWAY COMPANY, UTAH CENTRAL RAILWAY COMPANY, AND JAMES McGREGOR AND CLARENCE CAREY, RECEIVERS, RESPONDENTS

No. 547

Supreme Court of Utah

February 23, 1895

[For former opinion see Coombs v. Salt Lake & Fort Douglas Ry Co., 9 Utah, 322. 34 P. 248.]

APPEAL from the District Court of the Third Judicial District. Hon Samuel A. Merritt, Judge.

Action by Martha Ann Coombs against the Salt Lake & Fort Douglas Railway Company, Utah Central Railway Company and James McGregor and Clarence Carey, receivers, for an injunction nisi to become absolute within a definite length of time to be determined by the court unless the damages assessed by the court were paid. The court awarded plaintiff damages but denied the injunctive relief. Neither party asked for a new trial nor excepted to any of the findings of facts, which covered all the material issues. Plaintiff appealed from that specific part of the judgment denying the injunction, and the cause was reversed and remanded without instructions. (See 9 Utah 322.) Upon the remittitur and opinion of the supreme court and the record, plaintiff moved the court to enter a final judgment and to grant the injunction, and from the order overruling her motion, she appeals.

[The opinion states the facts except that the entire record on the former appeal used in support of the motion was before the court, having been brought up in a bill of exceptions. The court in its opinion cites all the authorities relied upon by both parties.--REP.]

Reversed.

James A. Williams, for appellant.

Mr. Le Grande Young, for both railroads, respondents, and Mr. P. L Williams, for receivers, respondents.

KING, J. SMITH, J., concurs.

OPINION

KING, J.:

From the record in this case it appears that suit was brought by the plaintiff against the defendant corporations to secure a permanent injunction, preventing them from operating their road or running cars thereon, unless there was paid to plaintiff, within such time as might be determined by the court, a sum of money sufficient to compensate her for the lasting injuries accruing to her property through the construction and maintenance of defendant railroad. The cause was tried by the court, which found in harmony with the material allegations of the complaint. Among other things, the court found that plaintiff was the owner of valuable property in Salt Lake City, which was bounded on the north and west by public streets, and that defendant Salt Lake & Ft. Douglas Railway Company constructed its road along said streets, and in front of her property, and in so doing made a large and deep cut, as a result of which one of the streets was ruined, and egress from and ingress to said premises rendered impossible; that a corner of plaintiff's property was entered upon and cut away in the construction of said road; that defendant never acquired, by purchase or otherwise, the easements and property injured; that, since the construction of said road, defendant Salt Lake & Ft. Douglas Railway Company has continuously operated its trains on the same, and the Utah Central Company, since its incorporation, has and now is running its trains thereon, under a lease from the former; that the running and operating of said trains, which continues night and day, jars said premises and the residences thereon, and throws ashes and cinders, sparks and smoke, thereon, and has repeatedly set fire to said residences; that said property is in the immediate neighborhood of, and is especially fitted for, superior residences, but that it has been greatly damaged by the construction and operation of defendant's road; that said damages amount to $ 3,300; that the injury thereto is permanent in its character, and is continuously and constantly recurring, so that it is a great hurt, inconvenience, and damage to said property and easements and hereditaments appurtenant thereto; that said defendants are insolvent.

Upon these findings of fact and the conclusions of law, the court awarded plaintiff judgment for $ 3,300, as damages, together with costs against the Salt Lake & Ft. Douglas Railway Company, and ordered that plaintiff execute a deed to it conveying the easements and property taken and injured, and release it from further damages upon the payment of said sum. It was further ordered that the injunction and injunctive relief be denied, and that the plaintiff do not recover as against the Utah Central Railway Company. No exceptions whatever were taken by the defendants to any proceedings or findings or judgment of the court. The plaintiff excepted only to that part of the decree denying injunctive relief. Subsequently she appealed to the supreme court of the territory, assigning as error the refusal of the court to grant the injunction as prayed for in her complaint. The record before this court discloses that the former appeal was taken on the judgment roll, and that the only portion of the decree appealed from was that denying plaintiff an injunction nisi; that both parties were satisfied with the findings of facts, took no exceptions thereto, nor did either ask for a new trial; that the error assigned was that the only portion of the judgment appealed from was not supported by the findings of fact. The appellate court decided: "It is the duty of the court to enjoin the company's (defendant's) use of the property, unless within a specified time it will pay the damage assessed. It follows that the court erred in not granting the injunction prayed for upon the conditions named. Judgment reversed, and the case is remanded." Coombs v. Railway Co., 9 Utah 322, 34 P. 248. Upon filing the remittitur in the lower court, with a certified copy of the opinion, appellant moved the court to enter a proper judgment, and grant an injunction nisi, in accordance with the opinion of the supreme court. The motion was overruled, and from the order overruling the motion plaintiff appeals.

One question only is presented for determination, viz.: What decree ought the lower court to have entered, with the record and remittitur before it? It is contended by the appellant that it was the duty of the lower court to look into the entire record, enter a decree awarding an injunction, unless respondent paid the damages theretofore found, within a reasonable time determined by the court; and the respondent earnestly insists that the decision of the supreme court was tantamount to a reversal of the case, and a direction to grant a new trial, and that the case was open for a retrial, at least upon the injunctive feature. It is evident from the "opinion" of the court (9 Utah 322, 34 P. 248) that the question presented by the appeal was whether or not the trial court had erred in denying the injunction. It was an equitable action, the damages being incidental, inasmuch as the insolvency of the defendant precluded any recovery, except through the employment of the injunctive powers of the court. The power of the court to grant an injunction was discussed, and it was held that the injunction should have been granted. "It follows that the court below erred in not granting the injunction prayed, upon the conditions named. Judgment reversed, and the case is remanded,"--is the language of the opinion. We think this language susceptible of but one interpretation. It was a decision that the plaintiff was entitled to a perpetual injunction, enjoining the operation of defendant's railroad (upon her tendering a deed as provided in the findings of fact), unless plaintiff's damages were paid. The words "conditions named" unmistakably referred to the tender of a proper deed upon the part of plaintiff, and the payment of the damages upon the part of the defendant. The concluding sentences from the "opinion," as above set out, were equivalent to a direction that the lower court look into the record, and ascertain the conditions, and award plaintiff the injunctive relief prayed for, unless, within such reasonable time determined by the court, plaintiff's damages were paid. A new trial was not ordered. A re-examination of the issues was not contemplated, and, in view of the record, not required. The plaintiff's injury was a recurring one. The insolvency of the defendant left but one remedy. It was a proper case for an injunction. It ought to have been granted by the trial court. This error was reversed, and, upon the remanding of the case, there was but the one duty for the court to perform,--correct it as directed by the supreme court. What was to be tried, upon respondent's theory that the supreme court granted a "new trial?" No appeal was taken from that portion of the decree awarding damages, so that the judgment for damages was res adjudicata. The findings, having been full and adequate upon every material issue raised by the pleadings, and not having been excepted to by either party, stand as the conceded facts of the case. They are in effect an "agreed case," and the lower court will always on an agreed case, stating a real cause of action, enter judgment. If it errs, the upper court will reverse and remand, not for the purpose of forcing the parties to agree upon a different case, but in order that the lower court may enter a proper judgment in accordance with the opinion. The upper court may, in terms, direct the lower court to enter a particular judgment; but if it simply reverses and remands the case, without directing what kind of judgment should be entered, then it is the duty of the lower court to look into the record, and enter such judgment as the opinion and record warrant.

No evidence was carried up on the former appeal in this case and this court is bound to presume that the special findings made by the court were...