Highland Boy Gold Mining Co. v. Strickley

• Decision Date: 26 October 1904
• Docket Number: 1540
• Citation: 28 Utah 215,78 P. 296
• Court: Utah Supreme Court
• Parties: THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Respondent, v. JOHN STRICKLEY and ELLEN STRICKLEY, his Wife, Appellants

78 P. 296

28 Utah 215

THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Respondent, v. JOHN STRICKLEY and ELLEN STRICKLEY, his Wife, Appellants

No. 1540

Supreme Court of Utah

October 26, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

Action to condemn a right of way for plaintiff's aerial tramway over defendant's mining claim. From a judgment in favor of the plaintiff, the defendants appealed.

AFFIRMED.

Frank Hoffman, Esq., for appellants.

Kent in volume 2, page 339, of his Commentaries, says: "The right of eminent domain, or inherent sovereign power, gives to the Legislature the control of private property for public uses and public uses only;" and on page 340, "But if they should take it for a purpose not of a public nature as, if the Legislature should take the property of A and give it to B, or if they should vacate a grant of property or of a franchise, under the pretext of some public use or service such cases would be gross abuses of their discretion, and fraudulent attacks on private right, and the law would be clearly unconstitutional and void." The same view is taken by other authors. Smith on Statutes, secs. 136-7; Sedgwick on Statutes, 514; Angell on Highways, secs. 86-7. And it will be found to be sustained by numerous decisions of court and judges of the greatest weight and authority. Wilkinson v. Leland, 2 Peters 653; West River Bridge v. Dix, 6 How. 545; Scudder v. Delaware Falls Co., Saxt. 726; Sinnickson v. Johnson, 2 Harr. 129; Beekman v. Railroad, 3 Paige 73; Varick v. Smith, 5 Paige 159; In re Albany Street, 11 Wend. 149; Bloodgood v. Railroad, 18 Wend. 56; In re John & Cherry Streets, 19 Wend. 676; Taylor v. Porter, 4 Hill, 140; Harris v. Thompson, 9 Barb. 361; Embury v. Connor, 3 Comst. 511; Hepburn's Case, 3 Bland 98; Bowman v. Middleton, 1 Bay 252; Pittsburg v. Scott, 1 Barr 309; Cooper v. Williams, 4 Ohio 253; McArthur v. Kelly, 5 Ohio 139; Buckingham v. Smith, 10 Ohio 288. In the case of Wilkinson v. Leland, a statute of Rhode Island, which had no written constitution, transferred title to lands. Story, J., says that "the doctrine is utterly inconsistent with the great and fundamental principles of a republican government, and with the right of the citizens to the free enjoyment of their property." "We know of no case in which a legislative act to transfer the property of A to B, without his consent, has ever been held a constitutional exercise of legislative power in any State in the Union."

The case of Warehouse Co., 96 N.Y. 42, heretofore cited, was cited and affirmed in the case of Cole v. La Grange, 113 U.S. Reports, page 6, Book 28, Co-op. Edition, page 896, wherein that court says:

"The general grant of legislative power in the Constitution of a State does not authorize the Legislature, in the exercise either of the right of eminent domain or the right of taxation, to take private property, without the owner's consent, for any but a public object."

The right to impose a tax for a private purpose is universally conceded to rest upon the same proposition as the right to take property for private purposes.

I cite the Savings and Loan Association v. Topeka City, Co-op. Edition U.S. Supreme Court Reports, p. 255. In the syllabus we find:

"1. A statute which authorizes towns to contract debts or other obligations payable in money, implies the duty to levy taxes to pay them, unless some other fund or source of payment is provided.

"2. If there is no power in the Legislature which passes such a statute, to authorize the levy of taxes in aid of the purpose for which the obligation is to be contracted, the statute is void and so are the bonds or other forms of contract based on the statute.

"5. Among these is the limitation of the right of taxation that it can only be used in aid of a public object, an object which is within the purpose for which governments are established.

"6. It cannot, therefore, be exercised in aid of enterprise strictly private, for the benefit of individuals, though in a remote or collateral way the local public may be benefited thereby."

Attention is called to the brief in this case found on pages 458-9, and to the table of cases chronologically arranged by States. The authorities are too numerous to be inserted here, but we think we fairly represent the law upon this subject.

Messrs. Sutherland, Van Cott & Allison for respondent.

The respondent at the outset objects to this court hearing this appeal, and insists that this case should be affirmed irrespective of the merits. The appellants assign no errors in their bill of exceptions or in their abstract. The rule is well settled that it is immaterial how many exceptions are taken by an appellant unless errors are assigned thereon. Suppose that a defeated litigant does except to various rulings, it does not follow that when the bill of exceptions is made up that each exception will be relied upon as actual error on an appeal. The appellant in such case can only rely, and should only rely, on those errors which are assigned. Our statute in substance so provides. In session laws of Utah 1903, page 33, it is provided in substance that when an objection is made to the insufficiency of the evidence to support the verdict or decision that the particulars must be specified in which it is claimed the evidence is insufficient.

The abstract of appellants on page 165 et seq. contains a number of exceptions taken by appellants, but there is nothing to show in the abstract that either of these alleged exceptions will be relied upon for a reversal. This court has provided in rule 6: ". . . and shall set forth fully . . . the points relied upon for the reversal of the judgment or decree or order appealed from . . ." Van Pelt v. Park, 18 Utah 146; Bank v. Brown, 20 Utah 86.

The use of the respondent for its aerial tramway is a public use.

The complaint of respondent shows that it is a mining corporation and authorized to acquire, maintain and operate aerial tramways for the transportation of ores and materials. As to whether respondent is doing this ostensibly for itself exclusively or for others, or for both, does not appear from the complaint; therefore, the general demurrer interposed by appellants cannot possibly raise the question whether the use sought by respondent is intended to be for itself or for the public generally, or for both. Therefore, the demurrer was properly overruled irrespective of any other question in the case.

As hereinafter appears, it is a matter of very great importance whether the Legislature can regulate a certain use for the public whenever desired, although in the first instance the use may be so exercised that the company condemning makes the only use. The respondent at the time of the hearing carried its own ores exclusively; it also carried not only its own coal, but coal for the Yampa Mining Company, receiving compensation therefor. So it appears that respondent carries for hire; but at the time of the hearing this was confined only to one person, so that the question before the court is as to whether the use of the respondent is a public use authorizing it to condemn under the statute. To a great extent the discussion of this particular question might be eliminated in view of the recent decision by this court in the case of Nash v. Clark et al., 27 Utah 158, in which it is held that the construction and use of an irrigation ditch is a public use. This is so analogous and so pertinent to the particular question at bar that it seems unnecessary to go exhaustively over the particular question in this case. Revised Statutes of Utah 3588, (6), was amended session laws of Utah 1901, page 19, (6), so that in substance it is provided that the right of eminent domain may be exercised in behalf of the following public uses: (6) ". . . tramways . . . to facilitate the milling smelting, or other reduction of ores, or working of mines; . . ."

A tramway is used for the transportation of ore, coal and all other materials necessary to the development of mines and the mining industry in this State. Appellants seem to contend that because a tramway transports freight through the air instead on the surface of the ground that this makes such a difference that while a railway is a public use a tramway is not. Respondent does not understand that appellants claim that a railway is not a public use, but they simply contend that a tramway is not a public use. However this may be theoretically, it is plain from the above quotation that our legislature has declared a tramway a public use.

Some courts decide that the legislative declaration of what is a public use is conclusive. Stockton, etc., Co. v. City of Stockton, 41 Cal. 168, 169, 175.

There are many other cases to the same effect. We do not cite them however, on account of our own views being to the effect that the weight of authority, as well as the better reasoning, is to the effect that the legislative declaration is not conclusive on this question. If this court should take the view that the legislative declaration is conclusive, then no further inquiry is necessary as the Legislature has declared that the use for a tramway in the development of mines is a public use. There are courts, however, that do not agree with the above view, but even these courts hold that primarily the question of what is a public use is a legislative question rather than a judicial one. In U.S. v. Electric Ry. Co., 160 U.S. 668 it appears that the United States was seeking to condemn certain premises so as to preserve the lines of battle at Gettysburg and the right of eminent domain was authorized for this purpose. It was held in substance that whatever tends to "enhance the respect and love of the citizen for the...