Ketchum Coal Co. v. Pleasant Valley Coal Co.

• Decision Date: 26 September 1917
• Docket Number: 3072
• Court: Utah Supreme Court
• Parties: KETCHUM COAL CO. v. PLEASANT VALLEY COAL CO. et al

168 P. 86

50 Utah 395

KETCHUM COAL CO. v. PLEASANT VALLEY COAL CO. et al

No. 3072

Supreme Court of Utah

September 26, 1917

Appeal from District Court, Seventh District; Hon. A. H Christensen, Judge.

Condemnation proceedings by the Ketcham Coal Company against the Pleasant Valley Coal Company, the Denver & Rio Grande Railroad Company and the Guaranty Trust Company.

Judgment allowing partial condemnation only. Plaintiff appeals.

AFFIRMED.

Boyd Devine & Eccles and Walton & Walton for appellant.

Van Cott, Allison & Riter and Ellis, Schulder & Lucas for respondents.

FRICK C. J. McCARTY, CORFMAN, and THURMAN, JJ., GIDEON, J concurring.

OPINION

FRICK, C. J.

Proceedings arising out of different phases of this case have been considered-by us twice before. Ketchum Coal Co. v. Christensen, 48 Utah 214, 159 P. 541; Ketchum Coal Co. v. District Court, 48 Utah 342, 159 P. 737. In both of those proceedings merely preliminary questions were involved. After the preliminary questions had been settled by this court, the case was finally heard upon the merits by the district court of Carbon County, which granted the claims of the plaintiff as against the defendant Pleasant Valley Coal Company in part and as against said company denied them in part; and as against the Denver & Rio Grande Railroad Company plaintiff was denied all relief. The principal defendants in this action are the Pleasant Valley Coal Company, hereinafter called P. V. C. Co., and the Denver & Rio Grande Railroad Company, hereinafter designated Railroad Co. The other defendants are merely mortgagees and need not be further mentioned. The action was commenced by the plaintiff to condemn a certain strip of ground over certain lands belonging to the P. V. C. Co., and also to condemn a portion of the right of way of the Railroad Co. We here insert a rough sketch which illustrates just what the plaintiff seeks to obtain in this action:

[SEE SKETCH IN ORIGINAL]

The sketch is supposed to cover precisely forty acres of land. North of and adjoining the forty acres shown on the plat the P. V. C. Co. owns another forty acres, and another forty acres west of and adjoining the last-named forty acres. It also owns another forty acres immediately south of and adjoining the forty acres shown on the plat. The P. V. C. Co. thus claims to own four forties lying in the shape of an L, the long stem of which extends north and south. The Railroad Co. owns a right of way 200 feet in width over the forty acres shown on the plat, the boundaries of which are indicated by the lines marked "R. W." The Railroad Co. owns and operates a number of tracks on its right of way, three of which are shown on the plat. The most northerly one is marked "T. 4," the next one to the south is marked "T. 3," and the one still farther south is marked "M. L." which is the main line. The plaintiff owns eighty acres of coal land on which it operates a coal mine which adjoins the P. V. C. Co.'s land on the east, and the northeast corner of the forty acres shown on the plat connects with the southwest corner of plaintiff's eighty acres. The plaintiff desires to condemn a strip of ground sixty feet in width and between 1,300 and 1,400 feet in length over the P. V. C. Co.'s land shown on the plat. The strip sought to be condemned is marked "A" on the plat, and it is desired to be used for tramways, tunnels, etc., for the purpose of transporting coal which the plaintiff mines from its coal mine on the ground lying to the north and east of the P. V. C. Co.'s land as aforesaid. The plaintiff, in connection with said strip "A," also seeks to condemn a strip of ground containing 1.42 acres, a large part of which is on the Railroad Co.'s right of way, for a tipple site. The strip sought to be condemned for that purpose lies between track No. 3 and Track No. 4, and is marked "T. S.--T. S." on the plat. The plaintiff also sought to extend the sixty-foot strip southward on the railroad right of way, as indicated by the broken lines on the plat. Both the plaintiff and the P. V. C. Co., however, concede the Railroad Co.'s title for railroad purposes to the right of way as indicated by the line "R. W." The objects indicated on the plat are all greatly enlarged so as to be more readily understood.

On the hearing, the district court found the title to the whole 160 acres, not included within the Railroad Co.'s right of way, to be in the P. V. C. Co.; found that the Railroad Co. had title from the United States government to the right of way; and found that the plaintiff did not have title to any of the 160 acres. We shall refer to the question of title again later in this opinion. The district court limited plaintiff's right to condemn as follows: The court denied plaintiff's claim to condemn any part of the Railroad Co.'s right of way for a tipple site and refused to extend the sixty-foot strip on to the right of way, but allowed the plaintiff the right to condemn said strip only to within five feet of the outer rail of track No. 4 indicated on the plat. It will be observed that track No. 4 departs from the right of way at the point where the sixty-foot strip connects with said track. The district court, however, limited plaintiff's right to condemn to a point approximately five feet north from the northerly rail of track No. 4, as indicated by the double line on the plat. The district court entered judgment condemning the sixty-foot strip over the P. V. C. Co.'s land to the point aforesaid, and also entered judgment denying plaintiff all other right to condemn, and dismissed the action as against the Railroad Co. The plaintiff appeals from the judgment.

Counsel for the defendants have filed a separate motion on behalf of each defendant, to dismiss the appeal, upon the ground that the judgment appealed from is not a final judgment and hence is not appealable. It is argued with much force by counsel for the defendants that the judgment appealed from does not finally determine and dispose of all the questions involved for the reason that the question of damages to which the P. V. C. Co. may be entitled for the value of the strip which the court condemned, and for incidental damages, is left undetermined. It is quite true that the plaintiff appealed before proceeding to assess the damages to which the P. V. C. Co. may be entitled in case plaintiff continues in possession and use of the strip condemned by the court. It should, however, be kept in mind that the plaintiff was given the right to condemn only a portion of the land it sought to condemn, and was denied the right to condemn any land for a tipple site as against the Railroad Co. If the court had denied the plaintiff's right to condemn anything, the question regarding the right of appeal would be entirely free from doubt and difficult. Inasmuch as the court has granted plaintiff's claim in part, however, it is contended by the defendants that the judgment is not final until the damages have been assessed for the land ordered condemned. Now, it may well be that the plaintiff does not desire the strip ordered condemned unless it can likewise obtain the proposed tipple site in connection therewith. Suppose condemnation proceedings were instituted by a railroad company for a right of way, including ground for side tracks and station grounds, and the trial court limited its right to condemn to a strip twenty-five feet in width, an amount wholly insufficient for the needs of the company for the purposes aforesaid. Would the company be required to assess damages for a strip of ground it did not want, and which was wholly inadequate for its needs, before appealing to this court? Would not the trial court's action in such case be equivalent to denying the company the right to condemn? True, the case at bar is not precisely parallel to the supposed case, but the difference is one of degree and not of principle. Here, as in the supposed case, the plaintiff may not desire the sixty-foot strip at all, unless it can obtain the ground it sought for a tipple site in connection therewith. But if it be assumed that it would, nevertheless, take what it could get, yet, under the facts and circumstances, it should not be required to assess damages until it has been finally determined by the appellate court just what, under the law, it may condemn. In the case of Ketchum Coal Co. v. District Court, supra, we, in effect, held that the question of ownership of the ground sought to be condemned and affected by the condemnation proceedings must be determined before the damages could properly be assessed. It is just as essential that the right to condemn, and the extent that the right may be exercised, be determined before proceeding to assess the damages. If that be not done, then, as pointed out in the case last referred to, this case must be determined by piecemeal. True, we said in the former case that to constitute a final judgment the case must be determined as to all parties. That language is, however, used and must be considered in the light of the issues there presented and in connection with all that was said. We also there said that cases cannot be split up and considered piecemeal. Now, if the contention of the defendants shall prevail in this case, and the plaintiff should finally succeed in its contention by having this court modify the judgment of the district court by condemning the ground claimed by plaintiff for a tipple site, then the damages would have to be assessed twice, once for the strip ordered condemned by the trial court and once for the additional strip ordered condemned by this court for a tipple site, a part of which is owned by the Railroad Co. and another part by the P. V. C. Co. This would compel the plaintiff to try the case by piecemeal, which we held...