Utah Copper Co. v. Stephen Hayes Estate, Inc.

• Decision Date: 28 March 1934
• Docket Number: 5302
• Citation: 83 Utah 545,31 P.2d 624
• Court: Utah Supreme Court
• Parties: UTAH COPPER CO. v. STEPHEN HAYES ESTATE, Inc., et al

31 P.2d 624

83 Utah 545

UTAH COPPER CO. v. STEPHEN HAYES ESTATE, Inc., et al

No. 5302

Supreme Court of Utah

March 28, 1934

Rehearing Denied November 30, 1934.

Appeal from District Court, Third District, Salt Lake County; R. I McDonough, Judge.

Action by the Utah Copper Company against the Stephen Hayes Estate Incorporated, and others. Judgment for plaintiff, and defendants appeal.

REVERSED and remanded, with directions.

Badger, Rich & Rich, of Salt Lake City, for appellants.

Dickson, Ellis, Parsons & McCrea, of Salt Lake City, for respondent.

DILWORTH WOOLLEY, District Judge. FOLLAND and EPHRAIM HANSON, JJ., STRAUP, Chief Justice, concurring. MOFFAT, J., did not participate. ELIAS HANSEN, Justice, dissenting.

OPINION

DILWORTH WOOLLEY, District Judge.

The Utah Copper Company, a corporation, brought this action against the Stephen Hayes Estate, Inc., a corporation, and others, to condemn the right to use certain lands in aid of mining. The lands desired by plaintiff are described in the complaint and throughout the record by metes and bounds and also by letters of the alphabet. Only the letters will be used herein. As the individual defendants are interested in the case only because they are the stockholders of the Stephen Hayes Estate, Inc., which is the principal defendant, they will not be referred to hereafter.

A trial was had before the court, sitting without a jury, to determine the preliminary questions which the court must decide in all condemnation cases (Comp. Laws Utah 1917, §§ 7333 and 7338), at the conclusion of which the court found, among other things, as conclusions of law and fact, that the uses to which the property is to be applied are uses authorized by law; that the taking is necessary to such uses; and that the property to be taken is not already appropriated to a public use, except that a part thereof which is used by the Bingham & Garfield Railway Company for railroad purposes, with which plaintiff's proposed use will in nowise interfere; and then, upon a stipulation being filed by the parties concerning the damages which defendant will sustain by reason of the taking and the severance, exclusive of any damage which defendant claims on account of the waters hereafter to be described, which are the principal subject of the litigation, the trial court entered judgment for plaintiff according to the prayer of the complaint, awarding damages for the stipulated sum. The damages were thereupon paid into court, and the court thereupon entered a final judgment of condemnation. The judgment also provided that defendant should pay the costs of trial.

The defendant appeals from the judgment, assigning a large number of errors in relation to the findings of fact, the conclusions of law, and the judgment, upon which it invokes and is entitled to have a ruling by this court upon the fundamental question of whether or not the plaintiff as a matter of law is entitled to condemn tracts C and D for the purposes for which they are desired. Defendant also raises a question as to which side is entitled to the costs in the lower court.

The controlling facts in the case, abstracted from the findings made by the trial court, are as follows: In conducting and carrying on extensive mining operations by the open cut method, in the West Mountain mining district, Salt Lake county, Utah, it is necessary for plaintiff to remove large quantities of low-grade ore or overburden from its mining claims and properties in order to facilitate and render possible the mining and removal of the higher grade ores contained therein. The overburden so removed must be deposited upon the surface of adjacent lands in close proximity to the mining claims from which it is removed. Heretofore plaintiff has deposited immense quantities thereof upon property which it owns in fee and which is located in a certain gulch in the mountainside known as Dixon Gulch. This gulch extends down the mountainside from the west toward the east, with an average slope of about 26 per cent; and at its lower extremity, where it joins Bingham Canyon, it is considerably narrower than above, being shaped somewhat like a funnel.

Immediately adjoining and to the east of plaintiff's land upon which said dump is situated is a tract of land known as the Valentine Script patent, embracing the West 1/2 of the East 1/2 of the northwest quarter, section 26, township 3 south, range 3 west, Salt Lake base and meridian, which embraces the land sought to be condemned. The Stephen Hayes Estate, Inc., is the owner in fee of the land sought to be condemned, subject to an easement over part thereof owned by the Bingham & Garfield Railway Company for railroad purposes. This easement was acquired by the railway company from the predecessors in interest of defendant, in part by grant and in part by a judgment in condemnation proceedings. The railway company has placed a large fill in and across Dixon Gulch, upon its right of way, about two-thirds of which fill is upon land owned by plaintiff and one-third upon land owned by defendant. Much of the material contained in the fill is of the same character as the material contained in the dump. Upon this fill the railway company has constructed and maintains and uses tracks, buildings, and other structures for railroad purposes. The railway company, so far as it has the right to do so, has consented to plaintiff's use of the land sought to be condemned for the purposes for which it is desired. The dump adjoins the railway fill on the west.

The low-grade ores of which the dump is composed contain small quantities of copper in carbonate, and sulphide form, amounting in the aggregate to many millions of pounds of copper. This copper, after the ores have remained exposed to the action of air and meteoric waters, becomes soluble in water, and may be recovered by precipitating the same by the use of copper precipitants. The dump, due to the accumulation of the rains and snows falling thereon, has become saturated with water; and, on account of the nature and character of such ores, a portion of the copper contained therein has been leached therefrom and is held in solution in the water. This leaching process is continually going on, and, we may infer, will continue until the copper in the dump is exhausted. If the water which falls upon the dump and which finds its way down and through the same by seeping and percolating through the voids can be captured and subjected to the action of copper precipitants, thereby a large amount of the copper contained in the dump can be recovered and produced by the plaintiff at a profit.

In order to recover the copper which has been and is continually being leached from the ores in the dump and taken up by the water in solution, it is necessary for plaintiff to collect the water and conduct the same through pipes, or other suitable means of conveyance, to tanks in which it may be confined and subjected to the action of precipitants. The trial court did not directly find that it is impossible or impracticable for plaintiff to collect the water upon plaintiff's own ground and there conduct the same into pipes in which it may be carried to the tanks; but the court did find that, in order for plaintiff to collect the water and conduct the same into pipes, it is necessary and essential for plaintiff to construct a tunnel, with a raise from the face thereof, and short branches extending therefrom, beneath the surface of a portion of defendant's land, in which to collect the water and from which it may be conducted into pipes and carried thence to the tanks, which are in Bingham Canyon below the point where it is joined by Dixon Gulch; and it is also necessary for plaintiff to utilize as a conduit, ditch, outlet, or channel for the purpose of conducting the copper bearing waters from the dump to the collecting works aforesaid that portion of Dixon Gulch extending across a portion of the said property of the defendant and lying in part beneath the bottom of the railroad fill. That part of defendant's property which it is necessary for plaintiff to use as a conduit, outlet, or channel for the copper waters, after they leave the dump, is a tract containing 1.37 acres, extending entirely across the gulch at its narrowest point and adjoining plaintiff's property on the east. This is designated as tract D. The tract desired as a site for the tunnel and collecting works is designated as tract C. Two other tracts, A and B, are wanted as easements in which to lay pipes in which to carry the waters from this and other dumps after they have been collected; and tract E is wanted as a site for an electrical transmission tower. As the controversy between the parties relates mainly to the right of plaintiff to condemn tracts C and D, the rights to A and B being only incidental to the use of the former, and there being no question at all about tract E, the discussion will be limited to tracts C and D, principally the latter.

All of the copper contained in the waters with which this action is concerned comes from the ores contained in the dump, which is owned by plaintiff and which is situated upon land owned by plaintiff; except that a small part thereof comes from the ores contained in the railroad fill; and all of the waters which are involved herein fall upon the dump and the fill in the form of rain and snow and find their way by seeping and percolating through the soil and earth on and above bedrock, following the course of Dixon Gulch. In the course of their journey they enter and cross tract D, seeping and percolating through the soil and through the railroad fill, and finally arrive at the collecting works on tract C. There is no surface stream flowing in Dixon Gulch. Before the fill and the dump were...