Ketchum Coal Co. v. Christensen

• Decision Date: 01 July 1916
• Docket Number: 2942
• Citation: 159 P. 541,48 Utah 214
• Court: Utah Supreme Court
• Parties: KETCHUM COAL CO. v. CHRISTENSEN, District Judge, et al

159 P. 541

48 Utah 214

KETCHUM COAL CO. v. CHRISTENSEN, District Judge, et al

No. 2942

Supreme Court of Utah

July 1, 1916

Mandamus by the Ketchum Coal Company against A. H Christensen, Judge of the District Court of Carbon County and others.

Permanent writ of mandamus ordered to issue.

Boyd, De Vine & Eccles, E. A. Walton and T. D. Walton, for plaintiff.

M. P. Braffet, Van Cott, Allison & Riter, and Dickson, Ellis, Ellis & Schulder, for defendants.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The plaintiff, a corporation, filed its application in due form in this court praying for an alternative writ of mandate against the defendants named in the title.The facts upon which the application aforesaid is based, and which facts were stated in an application to the district court of Carbon County, Utah, as hereinafter made to appear, in substance are as follows:

The plaintiff is a corporation and is the owner of a partially developed coal mine and is endeavoring to mine coal and to place the same on the market for general use.The Pleasant Valley Coal Company and the Utah Fuel Company are likewise corporations owning coal mines adjacent to the plaintiff's mine which mines are developed and said companies are engaged in mining and selling coal for general use.The defendants Cowie and Thompson are employees of said companies, and in the matters hereinafter stated acted under the direction of and for said companies, and the defendantHon. A. H. Christensen is the judge of the district court of Carbon County, Utah.In the year 1913the plaintiff, in a condemnation proceeding duly instituted under our statute against the defendant coal companies, obtained an order or judgment giving it possession and occupancy of the surface of a strip of ground owned by said companies 60 feet in width by about 1,300 feet in length.The purposes for which possession of said strip of ground was obtained and ordered by the court, and the character of said possession, are stated in the order or judgment aforesaid as follows:

"Said occupancy is for the use of said strip of land for the driving and construction of a tunnel or tunnels for the laying of the necessary tracks and for the construction and operation of a tramway or tramways and for the purposes and uses as in said complaint set forth as indicated on map attached to said complaint marked Exhibits A and C.The plaintiff is given the exclusive possession of the entire strip above described with this exception: At the point of intersection of plaintiff's proposed tramway with the Willow Creek tramway of the Pleasant Valley Coal Company, the plaintiff is only given the right to construct its tramway beneath the Willow Creek tramway at such point of intersection and in such a way as not to endanger the Willow Creek tramway or impair its strength or stability and the safe operation of cars thereover.Should any controversy arise between the parties as to the safe and proper manner of constructing the plaintiff's tramway beneath the Willow Creek tramway, the matter shall be referred to the court or judge at chambers at any place within the district on three days' notice to the opposite party.When the plaintiff is ready to construct its tramway beneath the Willow Creek tramway it shall so notify the Pleasant Valley Coal Company which is hereby given the right to have a representative present when construction work is going on to see that the Willow Creek tramway is properly protected."

Pursuant to that order, the plaintiff took immediate possession of the strip of ground and constructed a temporary tramway thereon and shipped some coal.In January, 1916, the plaintiff made preparation to construct a permanent tramway, or, what is termed in said application, "a permanent tramline" for the purpose of reaching the Denver & Rio Grande Railroad Company's tracks with said line so that plaintiff could transport the coal mined in its coal mine over said strip of ground by means of said tramline to such railroad tracks, to be there loaded upon the cars of said railroad company for transportation.The plaintiff, in the application to the district court aforesaid, sets forth specific acts of interference by the defendant coal companies through their employees aforesaid and that by such acts of interference said defendants are actually preventing the plaintiff from transferring the necessary lumber and material to be used in the construction of said tramway from the railroad tracks of said Denver & Rio Grande Railroad Company to said strip of ground, which lumber and material are intended to be used in the construction of said permanent tramway or tramline for the purposes aforesaid.The plaintiff, in the application to said district court, also alleged other acts of interference as follows:

"That, notwithstanding the opposition of the defendants, the plaintiff has, to a considerable extent, developed its coal mine and shipped some coal, and is now able to produce without delay large quantities of coal for which it has orders to the amount of thousands of tons, and the plaintiff's work and mining operations are, and have been, suspended since the last day of April, 1916, wholly by reason of their improper and unlawful maintenance by the said Pleasant Valley Coal Company and Utah Fuel Company of several electric and power lines and wires over, upon, and across the said 60-foot strip of land at an elevation substantially the same distance from the surface of the ground as the tracks of plaintiff's proposed tramline; that said wires and electric lines to the number of about five (5) were placed across said premises long after the order of occupancy referred to in the original affidavit was granted, and a new pole line was erected by said defendants to carry said wires long after said order of occupancy was made and without the consent of the plaintiff; said lines and wires were so placed and constructed and maintained as to interfere with and prevent the construction and completion of plaintiff's said tramline, and said tramline and trestle therefor was, on or about the 1st day of April, 1916, completed and constructed up to the close vicinity--within five (5) feet--of said wires, and plaintiff cannot proceed further with the construction of its said tramline, by reason whereof plaintiff's work is at a standstill, and said condition has existed since the 1st day of April, 1916, to the great loss and damage of the plaintiff.* * * Affiant further states that it is readily practicable to either put the said wires in conduits or to elevate the same so as not to interfere with the plaintiff's said work or the defendants' use of the same; that the same can be elevated at an expense of $ 50 or less."

Upon the foregoing facts the plaintiff asked the district court aforesaid to issue an order directed to said defendant coal companies and to said Cowie and Thompson, their employees, as aforesaid, to show cause why they should not be adjudged guilty of contempt and that they be required to "obey and respect said order"(the order giving plaintiff possession of said strip of ground).An order, as prayed for, was duly issued by said court and served on said coal companies and said employees.They appeared by their counsel and entered a general demurrer to the application.Upon a hearing, on the 25th day of April, 1916, said demurrer was sustained by said court.The plaintiff then presented its application to this court in which all the foregoing facts, with others, are set forth and in which application it prays "that a writ of mandate issue to the end that said judgment (the order or judgment giving plaintiff possession of said strip of ground) be enforced."

This court issued an alternative writ of mandate directed to all the defendants to which they interposed a motion to quash upon substantially the following grounds.(1) That the facts stated in the application for the writ do not entitle the plaintiff to the relief prayed for "or to any relief;"(2) that this court is "without jurisdiction to control or in any way direct the lower court in the exercise of its jurisdiction and discretion to judicially determine the matters and things referred to in said affidavit;" and (3) that it affirmatively appears from said application that the district court"exercised its jurisdiction and judicially determined the questions presented to it * * * on the hearing of the contempt proceedings referred to in said affidavit."With the motion to quashdefendants have also filed an answer in which, while admitting all the allegations of inducement stated in the application to this court, they nevertheless deny some of the allegations which were contained in the affidavit filed in the district court of Carbon County and to which they had demurred, and which demurrer was sustained as before stated.The denials, therefore, merely attempt to raise an issue upon the facts stated in the application to the district court and not to the facts which confer jurisdiction upon this court in a proceeding of this character.

While in a mandamus proceeding a defendant may file an answer and raise issues of fact, yet, when he does so, this court may refer the issues of fact to the district court for a hearing and findings thereon.Upon questions of fact either party is entitled to a jury trial in such a proceeding under our statute.When, however, as in this case, the question presented to this court must turn upon the facts that were admitted by the demurrer in the district court, and the sole question is whether, upon the conceded facts, the judgment of the district court should not have been in favor of the application, then the defendant may not, for the first time deny the truth of the facts in this...