Kennecott Copper Corporation v. Salt Lake County

• Court: Utah Supreme Court
• Writing for the Court: WADE; McDONOUGH; WOLFE; TUCKETT; CROCKETT; HENRIOD
• Citation: Kennecott Copper Corporation v. Salt Lake County, 250 P.2d 938, 122 Utah 431 (Utah 1952)
• Decision Date: 17 November 1952
• Docket Number: No. 7639,7639
• Parties: KENNECOTT COPPER CORP. v. SALT LAKE COUNTY et al.

Page 938

250 P.2d 938

122 Utah 431

KENNECOTT COPPER CORP. v. SALT LAKE COUNTY et al.

No. 7639.

Supreme Court of Utah.

Nov. 17, 1952.

C. C. Parsons, Wm. M. McCrea (now deceased) A. D. Moffat, Calvin A. Behle, Salt Lake City, for appellant.

Frank E. Moss, County Atty., William T. Thurman, Salt Lake City, for respondent.

G. Hal Taylor, Leland S. McCullough, Don J. Hanson, C. M. Gilmour, Salt Lake City, for intervenor and respondent.

WADE, Justice.

Plaintiff, Kennecott Copper Corporation, appeals from a judgment dismissing this action brought to recover taxes paid under protest. The texes in question were levied on plaintiff's millsite and tailings dump at Magna and Arthur in Salt Lake County. The State Tax Commission fixed the assessed valuation at $45.73 per acre.

The millsite, a 982.42 acre tract, is located on a sloping hillside with the tailings dump, and a 6,258.93 acre tract, adjoining it on the flat ground below. Before the millsite and tailings dump, these lands were used only for grazing purposes. The tailings dump grounds are covered with tailings to an average depth of 36 feet, they cover approximately ten square miles, around the outer edge a dyke has been constructed and a ditch to catch the waters which drain constantly through the tailings and contains copper precipitates. From 1939 to 1947, the amount of copper taken from this water was from as low as 148.101 pounds in 1946 to as much as 1,224,567 pounds in 1940. This copper is reported to the State Tax Commission as a part of the net proceeds of the mine for taxing purposes. The tailings have become a part of the ground where they are dumped and have completely destroyed the value of the ground for grazing purposes. These tracts are about 13 miles away and completely separated from plaintiffs open pit mines at Bingham from which the ores processed here are transported by rail. These two tracts are readily adjustable for use together in the gravity process of reducing ores. The two tracts were properly assessed as one tract for in the reduction of low grade ore the tailings dump is as much a part of the ore concentration plant as the mill proper because no such mill could operate without a convenient place to dump its waste materials.

Unimproved lands in this neighborhood similar to the millsite tract in its natural state are assessed at $5.44 to $6.86 per acre, and lands similar to the tailings dump tract in its natural state are assessed at from $4.14 to $20.27 per acre. However, there is a 632-acre tract similar to the tailings dump tract when those tracts were both in their natural state, now being used in harvesting salt, which is assessed at $66.16 per acre.

Plaintiff claims that this assessed valuation (1) is arbitrary, discriminatory and lacks uniformity and equal protection of law, (2) that it fails to meet the requirements of Sec. 80-3-1(5), U.C.A.1943, defining 'value' and 'full cash value' to 'mean the amount at which the property would be taken in payment of a just debt due from a solvent debtor', and (3) that these tracts are a part of plaintiff's 'mines and mining claims' and as such subject only to the $5. per acre statutory flat rate provided by Sec. 80-5-56, U.C.A.1943.

We consider the last claim first. Section 80-5-56, supra, requires that 'All metalliferous mines and mining claims, * * * shall be assessed at $5 per acre * * *.' Millsites and tailings dumps which are completely severed from and located as far from the mine and mining claims as these are not mines or mining claims as those terms were used in the statute. To this effect see Salt Lake County v. Kennecott Copper Corporation, 10 Cir., 163 F.2d 484, which raised the same question with reference to the same property and between the same parties, and South Utah Mines & Smelters v. Beaver County, 262 U.S. 325, 43 S.Ct. 577, 67 L.Ed. 1004.

Plaintiff's second claim is also untenable. Under Sec. 80-5-1, U.C.A.1943, 'All taxable property must be assessed at its full cash value.' The 1947 amendment to this provision, S.L.1947, Ch. 102, Sec. 80-5-1, provides that 'All taxable property must be assessed at forty percent of its reasonable fair cash value.' Sec. 80-3-1(5), U.C.A.1943, provides that "Value' and 'full cash value' mean the amount at which the property would be taken in payment of a just debt due from a solvent debtor.' This definition defines the phrase 'reasonable fair cash value' which was substituted for 'full cash value' also, for there is nothing to indicate that a different meaning was intended by this substitution. Although the phrase 'the amount at which the property would be taken' refers more definitely to the amount at which the creditor would be willing to accept the property than it does to the amount the debtor would insist on receiving, 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 property at an amount to which the owner-debtor would not agree. In other words, this is a definition of 'market value.' Although it speaks in terms of paying debts and not sale for cash, it is the price which would be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy. 18 Am.Jur. 876. It means the same thing as 'just compensation' in connection with 'eminent domain.' See 5th Amendment to United States Constitution, and Constitution of Utah, Article I, Sec. 22; Great Northern Railroad Co. v. Weeks, 297 U.S. 135, 56 S.Ct. 426, 80 L.Ed. 532; West v. Chesapeake & Potomac Tel. Co., 295 U.S. 662, 55 S.Ct. 894, 79 L.Ed. 1640.

In Moyle v. Salt Lake City, 111 Utah 201, 176 P.2d 882, 888, we said: 'It is elemental in eminent domain cases, that the owner is entitled to the value of the property for the highest and best use to which it could be put * * *.' To this effect see 18 Am.Jur. 879, under the title, 'Eminent Domain' Sec. 244, and the many cases therein cited. The fact that the value of this property for grazing purposes has been completely destroyed, and there is no sale for it on the open market does not mean that it is valueless. On this subject, under the title of 'Eminent Domain,' 18 Am.Jur. 885, Sec. 247, says:

'The adaptability of the land sought to be taken in eminent domain for a special purpose or use may be considered as an element of value. If the land possesses a special value to the owner which can be measured in money, he has the right to have that value considered in the estimate of compensation and damages.

'While market value is always the ultimate test, it occasionally happens that the property taken is of a class not commonly bought and sold, as a church or a college or a cemetery or the fee of a public street, or some other piece of property which may have an actual value to the owner, but which under ordinary conditions he would be unable to sell for an amount even approximating its real value. As market value presupposes a willing buyer, the usual test breaks down in such a case, and hence it is sometimes said that such property has no market value. In one sense this is true; but it is certain that for that reason it cannot be taken for nothing. From the necessity of the case the value must be arrived at from the opinions of well-informed persons, based upon the purposes for which the property is suitable. This is not taking the 'value in use' to the owner as contradistinguished from the market value. What is done is merely to take into consideration the purposes for which the property is suitable as a means of ascertaining what reasonable purchasers would in all probability be willing to give for it, which in a general sense may be said to be the market value. The market value, and not the value for such special purpose, or the value to the party seeking to condemn it, is the measure of damages.

'In order that this rule be applicable, it must appear, not that the property is peculiar, but that the relationship of the owner thereto is peculiar--its advantages to him more or less exclusive--that is, that it is property having value peculiar to the owner only, and without possible like value to others who may acquire it.'

Here the property has become valueless for grazing purposes. There is no other company that could operate it as a millsite and tailings dump as it is now being operated. So there is little possibility of a sale on the open market. But that does not mean that it...