Public Utilities Commission of Utah v. Jones

• Decision Date: 19 March 1919
• Docket Number: 3340
• Citation: 54 Utah 111,179 P. 745
• Court: Utah Supreme Court
• Parties: PUBLIC UTILITIES COMMISSION OF UTAH v. JONES

179 P. 745

54 Utah 111

PUBLIC UTILITIES COMMISSION OF UTAH v. JONES

No. 3340

Supreme Court of Utah

March 19, 1919

Appeal from the District Court of Salt Lake County, Third District Hon. H. M. Stephens, judge.

Proceeding by the Public Utilities Commission of Utah against Parley Jones.

Judgment for defendant. Plaintiff appeals.

REVERSED and REMANDED.

Dan B Shields, Atty. Gen., and O. C. Dalby and Herbert Van Dam Jr., all of Salt Lake City, Asst. Attys. Gen., for appellant.

King, Straup, Nibley & Leatherwood of Salt Lake City, for respondent.

CORFMAN C. J. WEBER and THURMAN, JJ., FRICK, J.,concurring. GIDEON, J., concurring in the order.

OPINION

CORFMAN, C. J.

The plaintiff, the Public Utilities Commission of Utah, hereinafter referred to as the Commission, commenced this action in the district court of Salt Lake county to enjoin the defendant from operating an automobile stage line carrying passengers for hire over certain routes or roads between Bingham Canyon and the Highland Boy mine and between Bingham Canyon and Copperfield, in Salt Lake county.

The complaint, in substance, alleged: That on the second day of July, 1918, one Eugene Chandler filed with the Commission his petition in writing for leave to operate an automobile stage line between Bingham Canyon and the Highland Boy mine and between Bingham Canyon and Copperfield, and that on July 30, 1918, after public hearing on said petition, an order was made by the Commission granting unto the said Eugene Chandler a certificate of convenience and necessity to establish an automobile stage line route between said points, over certain public streets, roads, and highways in Salt Lake county, and authorizing said Eugene Chandler to operate the same for the transportation of passengers between said places; that no other person, company, corporation, or association has been granted a certificate of convenience and necessity or has been authorized to operate a stage line or carry passengers between said points, and that no other person, company, corporation, or association has filed with the Commission a schedule of rates, fares, charges, or classifications, or caused the same to be published; that the defendant, disregarding the order so made by the Commission, has undertaken to, and now does, operate an automobile stage line, for the purposes aforesaid, over said routes so established by the Commission without any authorization from the Commission, and that the defendant disregarding the frequent requests and demands to cease such operation, refused to desist there from.

The answer, in substance, admits the order was made by the Commission permitting Chandler to operate the automobile stage line for hire, and denies generally the other allegations of the complaint. The answer also affirmatively alleges that on or about July 2, 1918, Eugene Chandler and the defendant were operating auto stages for hire over said routes, and that said Chandler requested the defendant to permit him, the said Chandler, to get a permit in his own name from the Commission, and agreed that they would hereafter operate the autos owned by said Chandler and the defendant together over said routes; that it was in pursuance of such an understanding on the part of the Commission, as well as on the part of said Chandler, and the defendant, that said permit was applied for and issued; that since the issuance of the said permit the said Chandler has refused to enter into any copartnership arrangement for the operating of said auto stage lines, and the said Chandler has instigated this suit for the purpose of preventing defendant from operating his autos and participating in the profits to be derived from operating such stages over said routes.

Trial was to the court. At the conclusion of the testimony on behalf of the Commission defendant moved for and was granted a nonsuit upon the ground that it was requisite to prove, and the evidence failed to show, the existence of a public highway, as defined by the Utah statutes, between the points designated in the complaint. Briefly stated, the Commission contends that the granting of the nonsuit was error for the following reasons:

(1) That the defendant was estopped by his own pleadings from denying that the roads in question are public highways.

(2) That the routes in question were sufficiently proved as public highways for the purposes of this case.

The record shows it to be an admitted fact that on July 2, 1918, an order was made by the Commission granting to the said Eugene Chandler a certificate of convenience and necessity to operate a stage line between the points mentioned. The testimony in behalf of the Commission further shows beyond any dispute that the routes or roads mentioned in the complaint between the points designated then were, and had been for many years, in general use by the public, and that there are no other roads or routes between said points. The testimony for the Commission is also conclusive, and the facts are admitted, that while the roads have been from time to time, at certain places, changed, a continual passageway has always been open, maintained, and extensively used for public travel between the designated points. The testimony also shows that since the issuance of the permit by the Commission to Chandler the defendant has used these roads in operating autos for hire over them, making as many as ten or twelve trips in a day; that the defendant had made no application for a certificate of necessity and convenience for leave to operate an automobile stage line between the designated points, nor had he ever filed a schedule of rates or fares to be charged by him over said routes.

Defendant contends, and the trial court ruled in nonsuiting the Commission, that there was a failure of proof on the part of the Commission for the reason that it failed to establish by the evidence that the roads in question have been created or established public highways within the meaning and as required by the statutes of our state.

"Highways" are defined by Comp. Laws Utah 1917, section 2800, as follows:

"In all counties of this state, all roads, streets, alleys, lanes, courts, places, trails, and bridges laid out or erected as such by the public, or dedicated or abandoned to the public, or made such in actions for the partition of real property, are public highways."

Section 2801 provides:

"A highway shall be deemed to have been dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years."

Section 2808 reads:

"It shall be the duty of the board of county commissioners in each county * * * to determine all public highways existing in its county and to prepare plats and specific descriptions of the same * * * which shall be kept on file in the office of the county clerk."

The Commission in the case at bar failed in its effort to prove a dedication as provided for in section 2801, supra, and also failed to produce a plat designating the roads in question as public highways in accordance with the provisions of section 2908, supra.

Let it be conceded that the Commission failed in its proof to meet the requirements of the sections of our statutes above cited; the question then arises: Is not the Commission entitled under the showing made to the relief prayed for in its complaint?

The Attorney General contends that, for the purpose of exercising the powers of the Commission, the statutory definition of public highways and the statutes providing as to how highways may be dedicated or created do not apply, but rather the rule of law relative to public highways in general should be invoked, citing 13 R. C. L. page 17, section 5, where the general rule is stated thus:

"The term 'public highway', in the broad ordinary sense, covers every common way for travel by persons on foot or with vehicles rightfully used on highways, which the public have the right to use either conditionally or unconditionally, and thus may include turnpike and toll roads, lanes, pent roads, crossroads, and even railroads and platform approaches thereto, and street railways. When appearing in a general law, it will ordinarily be regarded as having been used by the Legislature in its general sense. In a limited sense, however, the term means a way for general travel which is wholly public, and it may be restricted to this sense by the subject-matter of the statute in which it is employed. A railroad is not a public highway in the strict or limited sense of the term."

The...