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59, 138 Pac. 136; Hoffman v. Lewis, trict court of Carbon county, Utah, 31 Utah, 179, 87 Pac. 167; State ex rel. to vacate an order or judgment disDavis v. Edwards, 33 Utah, 243, 93 missing the defendant Pleasant ValPac. 720; State ex rel. Cutler-Davis v. Cutler, 34 Utah, 99, 95 Pac. 1071;

ley Coal Company, hereinafter State ex rel. Neilson v. Third Judicial

called Company, as defendant from Dist. Ct. 36 Utah, 223, 102 Pac. 868;

a certain action pending in said State ex rel. Burt v. District Ct. 39

court, wherein the plaintiff in this Utah, 1, 114 Pac. 143; Salt Lake Coffee proceeding is plaintiff, and all of & Spice Co. v. District Ct. 44 Utah, the other defendants above named, 411, 140 Pac. 666; Utah Asso. v. Bow- including said

including said Company, are deman, 38 Utah, 326, 113 Pac. 63, Ann. fendants, and reinstate said ComCas. 1913B, 334; Re Pennsylvania Co. pany as a defendant in said action, 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141; Cahill v. Superior Ct.

and to proceed to try the same 145 Cal. 42, 78 Pac. 467; People,ex rel.

against all of the defendants, inSayer v. Garnett, 130 Ill. 340, 23 N.

cluding said Company. The appliE. 331; State v. Smith, 105 Mo. 6, 16

cation was made upon notice duly S. W. 1052; Nevada C. R. Co. v. Dis

served upon all of the defendants. trict Ct. 21 Nev. 409, 32 Pac. 673; Re

All except the Utah Fuel Company Morrison, 147 U. S. 14, 37 L. ed. 60, 13 have appeared by their respective Sup. Ct. Rep. 246; Ex parte Johnson, counsel, and have joined in a de25 Ark. 614; Tomkin v. Harris, 90 Cal. murrer to the application, and have 201, 27 Pac. 202; Cariaga v. Dryden, also filed an answer to certain por29 Cal. 307; People ex rel. Polhemus tions thereof. For the purposes of v. Pratt, 28 Cal. 166, 87 Am. Dec. 110; State ex rel. Galbraith v. McCutchan,

this decision it is not necessary to 119 Mo. App. 69, 96 S. W. 251.

consider anything except the gen| Plaintiff cannot maintain a suit for

eral demurrer, which has been arcondemnation when he claims to be gued by respective counsel and the the owner of all that is sought to be cause duly submitted. Neither is it condemned.

necessary to make any further ref2 Lewis, Em. Dom. 3d ed. § 660; erence to the defendant Utah Fuel Los Angeles v. Pomeroy, 124 Cal. 597,

Company, nor to the answer of the 57 Pac. 585; Milwaukee & N. R. Co.

defendants, since it presents no isv. Strange, 63 Wis. 178, 23 N. W. 432;

sues which affect the result reached Colorado Midland R. Co. v. Croman, 16 Colo. 381, 27 Pac. 256; Re Yonkers,

by us. 117 N. Y. 564, 23 N. E. 661; Olean v.

The application is based upon Steyner, 135 N. Y. 341, 17 L.R.A. 640, substantially the following facts : 32 N. E. 9; Geneva v. Henson, 195 N. Some time in the year 1913, the Y. 447, 88 N. E. 1104; Johnstown Min.

plaintiff, under the name of KetchCo. v. Butte & B. Consol. Min. Co. 60

um Coal Company, a corporation App. Div. 344, 70 N. Y. Supp. 257; Leavitt v. School Dist. 78 Me. 574, 7

owning a coal mine in Carbon

a Atl. 600.

county, Utah, and the applicant in Although a suit may be in form one

this proceeding, hereinafter styled to quiet title, yet if it is in effect an plaintiff, commenced an action in action of ejectment a jury trial is per

the district court of Carbon county missible.

against the defendant above named, Park v. Wilkinson, 21 Utah, 279, 81 and other defendants, to condemn a Am. St. Rep. 693, 60 Pac. 945; Dona

certain strip of ground to be used hue v. Meister, 88 Cal. 121, 22 Am. St.

for tramway, tunnel, and other purRep. 283, 25 Pac. 1096; Newman v. Duane, 89 Cal. 597, 27 Pac. 66; Angus

poses in connection with the oper

ation of its coal mine. In July, v. Craven, 132 Cal. 691, 64 Pac. 1091.

1913, an order condemning a cerFrick, J., delivered the opinion of tain strip of ground was duly enthe court:

tered by said district court, and the This is an original application to plaintiff was given, and took, posthis court for a peremptory writ of session of the strip condemned as mandate to require Honorable A. aforesaid. During the first half of H. Christensen, judge of the dis- this year, however, some of the de

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(48 Utah, 342, 159 Pao. 737.) fendants interfered with plaintiff in question, and to the other lands in its right of possession of said for which it claimed damages. No strip, and upon applying to the dis- attack was made upon the reply, trict court of Carbon county for re- and the Company proceeded to take lief from said interference, said the deposition of a certain witness court refused to grant the relief de for the purpose of controverting at manded, and dismissed plaintiff's least some of the facts pleaded in application. The plaintiff thereup- the reply. The case, it seems, was on made an application to this set for trial; but before that time court, to require the district court to arrived the Company filed a motion enforce its order of possession and in which it asked the court to disuse of such strip, which application miss the condemnation proceedings was duly granted. Ketchum Coal as against it, for the reasons: (i) Co. v. Christensen, 48 Utah, 214, That the plaintiff was seeking to 159 Pac. 541. In plaintiff's com- condemn property to which it had plaint, filed in the condemnation "set up paramount title in itself, by proceeding, it was alleged that the virtue of a conveyance" from one defendants claimed to

to own the

the who claimed title in fee, and that it property sought to be condemned, claimed that it had acquired all and it was further alleged that the rights to said property by virtue of Company claimed to be the owner said conveyance; and (2) for the of certain portions of section 1, reason that plaintiff was merely township 13 south, range 9 west, maintaining the action as against

, particularly describing the subdi- the Company, "for the purpose of visions affected, and over a large attempting to quiet its title to the portion of which lands the strip in property sought to be condemned, question, which is 60 feet wide and alleging and claiming that it has 1,300 feet in length, extended. The

paramount title to said property Company answered plaintiff's com- sought to be condemned, and that plaint, and in its answer set up the defendant Pleasant Valley Coal various defenses to plaintiff's right Company has no title therein or to condemn the property, and in thereto." The district court grantconnection therewith also claimed ed the motion and dismissed the title to the strip of ground and to action as against the Company, exthe land over which said strip ex- cept as to a very small area of tended. It also claimed a large ground which was a part of said amount of damages, both for lands strip. The dismissal thus excluded affected and otherwise. It is not from the condemnation proceedings necessary to refer to the answers of

practically the whole strip of the other defendants. The plaintiff ground which had been condemned, , in due time filed its reply to the and of which plaintiff had taken Company's answer. In the reply possession pursuant to the order of the plaintiff sought to meet the de

July, 1913, and upon which it alfense set up by the Company, and leges in this application it had exalso explained and denied its claim

pended about $40,000 in carrying for damages. The plaintiff also al

out the purposes for which it had leged in the reply that since the

sought to condemn the same. By commencement of the action it had

excluding the Company and the acquired title to the strip of ground strip of ground from the condemin question, setting forth in great nation proceedings, a large portion detail the source of title, and de

of the area of ground involved in nied the Company's title; and in

that action has been eliminated that connection it also set forth

therefrom. with much particularity the facts The parties do not agree upon assailing the Company's title, and what ground the district court the reasons why the Company did granted the Company's motion. . not have title to the strip of ground The plaintiff has, however, made

for decisioneffect.

the court's oral opinion a part of title; and as to all lands to which the record in this case. The Com- both it and the Company claim title pany disputes that what plaintiff the proceeding was dismissed. has presented to us correctly re- The Company resists this appliflects what the district court said in cation upon substantially the folpassing on the motion, and con- lowing grounds: (1) That mandatends that it does not contain all mus is not the proper remedy; and that was said. We need not con- (2) that the court properly discern ourselves with all that the missed the action as against the court may have said. Its reasons Company for the reason that the

for dismissing the plaintiff claims title to the strip of Appeal-reasons

action against the ground in question, and therefore

Company are not the action as between it and the controlling. The controlling ques- Company could proceed only as one tion is whether the dismissal can be to quiet the title to the lands claimed sustained in law.

by both, and that a condemnation As already pointed out, the mo- proceeding may not be converted tion to dismiss was based upon two into an action to quiet title. and two grounds only. All that the Many reasons are urged by councourt said, as appears from the sel why mandamus is not the propstenographer's report, is directed to er remedy, the principal ones being: those grounds. From

From what the (1) That the court acted judicially court said we are well satisfied that in dismissing the action against the in passing on the motion it based Company; and (2) because plainits decision entirely upon the fact tiff has an adequate remedy by apthat the plaintiff in its reply had peal. We have frequently stated the set forth that since the action was rule governing mandamus procommenced it had acquired the title ceedings, and under what circumto the lands which the Company stances the writ will be granted or claimed to own, and therefore, as denied. The rule and the reasons the court said, the "controversy therefor are discussed in Hoffman between plaintiff and defendant v. Lewis, 31 Utah, 179, 87 Pac. 167; (Company)

is purely and

Carbon County v. Carbon County simply a question of quieting the High School Dist. 45 Utah, 147, 143 title." The court then goes on to enlarge upon its reasons for dis- Morehouse, 38 Utah, 234, 112 Pac.

Pac. 220; State ex rel. Bishop v. missing the action, and finally concludes that the question concerning Utah, 168, 143 Pac. 232. We shall

169, and Kyrimes v. Kyrimes, 45 the title "should be determined outside of the condemnation suit, and

not pause to again discuss the rules

or the reasons which ordinarily the court so holds.” In other portions of the court's oral opinion the

govern the courts in such proceed

ings except to state that where the same grounds are stated. There cannot be any doubt that the court

writ is sought to compel action on

the part of the court the legal right granted the motion upon the sole

to the particular action which is ground that the plaintiff had set up sought to be compelled by the writ in its reply that it had acquired the

must be clear, and title to the strip of ground to which

the legal duty to do the Company also claimed title, and that, therefore, the title to the landsmanded on the part

the act or thing de- by court-when in question was

involved. The

of the court must be equally clear. court then held that all questions In addition to the foregoing there affecting title should be determined must be a lack of in another action, and for that rea- adequate remedy by remedy by son declined to proceed further in appeal. Mandamus appeal. that action, except as to those lands may, however, issue to compel a to which the plaintiff did not claim court to take jurisdiction of a

Mandamus-to compel action

lies.

-effect of

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(48 Utah, 342, 159 Pac. 737.) cause and proceed to hear and de- ever, when the higher court, with

termine it, where out reflection, or without a careful -to compel taking of jurisdic. the court, with- examination of the authorities or

out legal authority close scrutiny of the facts, fails to therefor, refuses jurisdiction. Hoff- fully grasp and appreciate the man v. Lewis, supra. So, where a character or nature of the act or court has heard a case and has thing which is sought to be coerced,

made its findings, and the circumstances under which -to compel

mandamus will lie the court's refusal to act occurs. judgment.

to compel it to en- Some attention must also be given ter final judgment. Benson to the difference in the procedure or Ritchie, 44 Utah, 59, 138 Pac. 136. practice in the jurisdiction where And, as we have recently decided, the writ is applied for, as compared

the writ will also with other jurisdictions from which to enforce

lie to compel courts judgment.

cases are cited. to enforce their With the foregoing conditions in own judgments. Ketchum Coal Co. mind, let us now proceed to a brief v. Christensen, 48 Utah, 214, 159 review of the case in hand. As we Pac. 541. The writ will likewise have seen, the original action was issue to compel a court to proceed instituted' to condemn a certain when it, through mere mistake of strip of ground. That the plaintiff law, declines to take jurisdiction, had the legal right Judgment-con

and for that reason refuses to pro- to condemn, and demnation proceed to try the case, or refuses to that condemnation

ceedings-effect. hear and determine the issues

was for a public use, were settled by therein, and there the lower court when it entered the -refusal of

is not an adequate order of condemnation, and by jurisdiction.

remedy by appeal. which it authorized the plaintiff to The doctrine just attempted to be take possession of and improve the stated is laid down in 26 Cyc. 190, strip of ground to which now both in the following words: “Where a the plaintiff and the Company claim court declines jurisdiction by mis- title. take of law, erroneously deciding No legal objection seems to have as a matter of law, and not as a de- been made to that order, and no obcision upon the facts, that it has no jections were urged to plaintiff's jurisdiction, and either declines to complaint, and none was made to proceed or disposes of the case, the the Company's answer, in which it general rule is that a mandamus to affirmatively set up its title to the proceed will lie from any higher strip. The plaintiff had, however, court having supervisory jurisdic- made one C. N. Sweet and one T. A. tion, unless there is a specific and Ketchum parties to the original adequate remedy by appeal or writ complaint, and had therein alleged of error. Mandamus will not, how- that they also claimed title to much ever, issue to review the decision of of the land which the Company a lower court which has refused claimed. While the action was jurisdiction after determination of pending, however, it seems that T. fact.”

A. Ketchum obtained Sweet's title, From an examination of the or supposed title, to the lands cases, and by keeping in mind the claimed by the Company, and that underlying principles which govern plaintiff thereupon acquired whatcourts in granting or denying the ever title T. A. Ketchum had from writ of mandate, it goes without him. The facts regarding the acsaying that, unless great care is ex- quisition of the title were thus set ercised, the writ in some instances forth in plaintiff's reply, and in that may be improperly granted, while way, and for that reason, the issue in others it may as improperly be respecting the title to the strip in denied. That can occur only, how question, and the particular gubdivisions from which the strip is joining lands is not determined by taken, arose between the plaintiff à jury in the ordinary way, as it and the Company. While no objec- would be in a court, but it is usually tion was interposed to the reply as determined by special commissiona pleading, yet, after the cause had ers or by a special tribunal. Under been set for trial, the Company in- such circumstances, every lawyer terposed a motion to dismiss as readily understands and appreciagainst it, for the reasons we have ates why condemnation proceedings before stated. Are the reasons are not deemed proper to try quesurged by the Company in support of tions of title, and, therefore, such the court's action sound?

4 A.L.R.-40.

questions must be tried in a court Counsel for the Company have of general jurisdiction; and in case referred us to cases from other the

the dispute respecting the title jurisdictions, where it is held that arises between the condemnor and when the title to the ground

to the ground the condemnee, the question of sought to be condemned is claimed title must be determined in a proper by both the condemnor and the con- action, and in a proper court, bedemnee, the question of title as be- fore the damages can be adjusted as tween them may not be litigated or between them. Such is, however, determined in a condemnation pro- not the case in this jurisdiction. ceeding, but that the question of Our Constitution (art. 8, § 19) protitle must be settled in an inde- vides : “There shall be but one pendent action, and that the con- form of civil action, and law and demnation proceeding cannot pro- equity may be administered in the ceed until the question of title is same action.” settled. The cases of Geneva v. Matters purely legal and purely Henson, 195 N. Y. 447, 88 N. E. equitable may thus not only be de1104, and Re Yonkers, 117 N. Y. termined in the same forum, but 564, 23 N. E. 661, clearly reflect they may be tried and determined the holdings of the courts upon that in the same proceeding or action. subject, and hence it is not neces- Moreover, there is but one form of sary to refer to other cases. Con- civil action known to our practice. ceding, however, that the cases In passing upon the foregoing profrom New York, and from other vision of our Constitution, this states, that are referred to by coun- court, in Morgan v. Child, C. & Co. sel, in view of the statutory pro- 41 Utah, 562, 128 Pac. 521, held visions and the nature of condemna- that when it is necessary to settle tion proceedings in those jurisdic- equitable issues before legal rights tions, are entirely sound, the ques- are to be determined and adjusted, tion here is whether, in view of our a separate action to determine the constitutional and statutory pro- equitable questions is not necesvisions relating to the nature and sary, and that a party to any accharacter of actions in this juris- tion or proceeding cannot be rediction, we are justified in follow- quired to adjudicate his equitable ing those decisions.

rights in a separate action; but he In New York, as well as in many may have all issues, whether equiother jurisdictions, condemnation table or legal, heard and determined proceedings are special, and the in the same action or proceeding. proceeding comes before courts of This court in that case, therefore, general jurisdiction only in cases reversed the lower court's ruling, when there is an appeal from the by which it refused to proceed to damages awarded to the landown- determine the legal rights of the er. In the first instance, therefore, plaintiff until he had settled his the proceedings are not instituted equitable rights in a proper action in courts of general jurisdiction, in a court of equity. and the amount allowed either for This court has also held that land taken or for damages to ad- when in a case both equitable and

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