(48 Utah, 342, 159 Pac. 737.) legal issues arise, and it becomes necessary to determine the equitable issues before proceeding to an adjustment of the legal rights of the parties, or some of them, in such event the court must determine the equitable issues first. Park v. Wilkinson, 21 Utah, 285, 81 Am. St. Rep. 693, 60 Pac. 945, and cases there cited. In view of the constitutional provision aforesaid, and the foregoing decisions, the district court of Carbon county was clearly mistaken respecting its duty to hear and determine all the issues arising in the original action, whether legal or equitable, and in holding that the issues respecting the title to the Eminent domain -jurisdictionaction to quiet title. strip in question, and with regard to the other land which is claimed to be damaged by the severance of the strip therefrom, or by the construction of the contemplated improvements, could not be tried and determined in the original action. In some jurisdictions it is held that the title may be quieted in condemnation proceedings, both as between the condemnor and the condemnee, and as between several condemnees. It is, however, also held that in case the dispute respecting the title arises only between or among the condemnees, so that it is only a question of the distribution of the condemnation money or the damages that are awarded, the question of title may be determined as well after as before the condemnation action is tried. Among other cases in which it is held that disputes regarding the title to the condemned property may be determined in the con- rard v. Omaha, N. & B. H. R. Co. 14 Neb. 270, 15 N. W. 231; Dietrichs v. Lincoln & N. W. R. Co. 14 Neb. 355, 15 N. W. 728; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585. In Chicago & M. Electric R. Co. v. Diver, supra, the supreme court of Illinois squarely holds that the issue of title should be determined in the condemnation action, and with regard to the method of procedure the court states the rule thus: "In a condemnation proceeding, the issue of ownership, if any, is preliminary to the submission of the question of damages to the jury, and is to be litigated and determined before the jury is impaneled to assess the amount to be paid the owner." That case is approved and followed in Illinois C. R. Co. v. Roskemmer, 264 Ill. 103, 105 N. E. 695. It is, however, said in the latter case that "it may be impossible to have a final adjudication before the trial as to the various titles involved." Chicago & N. W. R. Co. v. Miller, 251 Ill. 58, 95 N. E. 1027, is a case in point. That condition may arise when the dispute regarding the title arises only between or among the condemnees. Where such is the case the condemnor takes the property and improves it, and the damages are assessed against him, which he pays into court to await the final determination of the title. Where, however, as in this case, the dispute regarding the title arises between the condemnor and one or more of the condemnees, the question of title must be settled and determined before the damages are Minnesota, as well as in those cited assessed. In the case cited from from Nebraska, it is held that disputes concerning the title may be determined in a condemnation proceeding, and it is so held notwithstanding the fact that under both the Minnesota and Nebraska stat utes condemnation proceedings are not instituted in courts of general jurisdiction, but come there only on appeal in case either party is dissatisfied with the award of damages made by the commissioners appointed for that purpose. As a matter of course, it is held in both states that the issues respecting title must be raised by the pleadings, or they cannot be considered. In Los Angeles v. Pomeroy, supra, Mr. Chief Justice Beatty, under a statute like ours, in his usual clear and vigorous style, points out that all questions relating to the title of the property that is condemned, or is affected by the condemnation proceedings that may arise, should be tried and determined in the condemnation action. And why may that not be done? It seems clear that our statute, which is like the one in California, contemplates that it should be done. Comp. Laws 1907, § 3596, so far as material here, provides: "The court or judge thereof shall have power: To hear and determine all adverse or or conflicting claims to the property sought to be condemned, and to the damages therefor," and "to determine the respective rights of different parties seeking condemnation of the same property." Again, under our statute an action to condemn lands is commenced, conducted, and tried in the same courts and in the same man ner as all other actions affecting real property are tried. In view of the provisions of our statute, it is not easy to understand why all issues arising in condemnation actions are not to be tried and determined in that action, the same as is done in all other actions affecting real property. Counsel for the Company, however, suggests that if that be done a party may be deprived of a jury trial. That does not necessarily follow. If the question respecting title is equitable, no party is, as a Jury-condemnation proceedings. matter of right, entitled to a jury trial, and if the question is purely legal, then all damages. the jury that is impaneled in the case, and the court may, by proper instructions, tell the jury that the damages must be apportioned in accordance with their findings respecting the title. The same questions may arise in much the same way where a party sues for damages to his real property, and his title is disputed. Counsel for the Company, however, also vigorously contend that where, as here, a plaintiff in a condemnation proceeding asserts paramount title in himself, there is nothing to condemn, and therefore his action must fail. They insist that the plaintiff, in its reply, claims title to practically all the land that is claimed by the Company, and in view of that fact there is nothing to condemn as against it. It is quite true that condemnation proceedings were conceived and created so that the proceeding. title or ownership purpose of of real property, which is claimed and needed for some public use or purpose, may be transferred from one person, natural or artificial, to another, against the will of the owner. As a general rule, therefore, the condemnor seeks to acquire the property of another. The cases, therefore, are not numerous where the owner seeks to condemn property in which he has an interest, and are much rarer still where he claims the title to the property sought to be condemned. Such cases may, however, arise. For example: There may be a title emanating from two sources. The condemnor may thus claim through one source while the condemnee may claim through the other. Again, the condemnor may claim the legal title in fee, while the condemnee claims an equitable title; or the one may claim that he has acquired a tax title from the state, the validity of which the oth -admission of title of condemnor. (48 Utah, 342, 159 Pac. 737.) er, having the fee title, disputes. Now it is palpable that in any one of the foregoing instances the conditions may be such that the condemnor may desire possession of the property sought to be condemned, at once, for the purpose of devoting it to some public use. He may thus commence an action to condemn, set forth his title, and further allege that the condemnee claims ownership thereof, or some interest therein, pleading the facts in that regard. True it is, if the condemnor claims ownership, the condemnee may, either by general demurrer or otherwise, admit his claim, and where that is the case the condemnor is entitled to judgment upon the merits, and the condemnee is entitled to go hence with his costs. That, however, is not the question we are confronted with. Here the Company, as condemnee, concedes nothing, and yet claims a strategic advantage over plaintiff by reason of its plea of ownership in its reply. The Company, however, still insists on its plea of ownership in its answer, as well as upon its denial of plaintiff's ownership in the same answer, and notwithstanding the fact that it concedes nothing, and claims title in itself, and disputes the title of plaintiff, it nevertheless insists that there is nothing to condemn and nothing to try. To so hold would result in sacrificing substance to mere empty form. As a matter of course, one may not invoke the aid of a court of justice to obtain that which is already his own, and to which others lay no claim. We, however, have no such case to deal with here. Here both the plaintiff and the Company claim title to the property sought to be condemned. The Company was in possession of the strip condemned until the order of condemnation was entered, when plaintiff took possession thereof, and has since then placed certain improvements thereon. If the Company desires to concede plaintiff's claim of title, all it has to do is to withdraw its answer and surrender its claim of title. The plaintiff may then have judgment on the merits against it, and the case should, of course, be dismissed,-at least, as against the Company. So long, however, as it claims the title to the condemned strip and demands damages therefor, -adverse claim suit. how can it demand dismissal of It should, however, also be re- title. pute title. Ordinarily, where a condemnor commences his proceeding, and does not assert title or ownership in the land sought to be condemned, he may not, except under certain condi- right to distions, dispute the title or ownership of the condemnee. Mr. Mills, in his work on Eminent Domain, 2d ed. § 161, states the rule in that regard thus: "The condemning party cannot dispute the title of the party in possession, against whom proceedings have been instituted, unless such party has acquired a paramount title." Counsel for the Company contend that the last clause is not supported by authority, and hence cannot be considered. But why not? It certainly is good sense, and we think must commend itself to every disinterested lawyer. Moreover, to permit the dismissal to stand would place the plaintiff in a most anomalous, if not deplorable, condition. In that event, what becomes of the order of condemnation? What are plaintiff's rights in and to the strip of which it took possession under that order, and in the improvements placed thereon pursuant thereto? Is or is not the plaintiff a trespasser? And, if so, is it such from the time it took possession under the court's order, or only from the date of the dismissal of the action as against the Company? We confess our entire inability to grasp plaintiff's legal status in case the dismissal stands. Appeal-review action. Counsel for the Company, however, insist: (1) That although it were conceded that the court was mistaken regarding the law, and may have misconceived its duty in the premises in dismissing the Company from the action, yet that it acted judicially; (2) that the plaintiff has an adequate remedy by appeal, and hence mandamus will not lie. Ordinarily, no doubt, the court acts juof dismissal of dicially in dismissing an action or complaint, and, in case it errs, such error may be reviewed on appeal, after the action has passed to final judgment. Does the court's action in this case, however, merely constitute an erroneous dismissal? True, generally speaking, it may be said the court erred in dismissing the action. The error, however, falls within the principle we have quoted from Cyc. and the one discussed in the case of Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167. In fact and in law the dismissal in this case clearly amounts to a refusal on the part of of the compel hearing lower court to hear and determine the issues that are presented in the condemnation action. If any court, in any case, should arbitrarily or capriciously refuse to hear and determine such case, and should dis Mandamus-to of action. miss it, would anyone question the aggrieved party's right to a writ of mandate to compel such court to proceed to try and determine the case on its merits, and to enter final judgment thereon? Of course, as was stated in Benson v. Ritchie, 44 Utah, 59, 138 Pac. 136, the supreme court could not direct what the judgment should be, nor would such tribunal say that the action should not finally be dismissed upon its merits. It would, would, however, be proper to compel the court to hear the case and to enter a final judgment therein. If, therefore, it is proper to do that, why is it not also proper to compel the court to hear the case upon its merits, and to enter a final judgment therein, either by dismissing it upon the merits, or by granting such relief as to the court, under all the facts and circumstances, may seem just and right? Now let it be conceded, for, no doubt, such is the fact, that the lower court did not intend to act either arbitrarily or capriciously in refusing to hear and determine the issues respecting the title to the lands in question, and in dismissing the action as against the Company; yet how does that affect either plaintiff's rights or the duty of this court in the premises? Moreover, does such an admission change the character or nature of the act of the court? We think not. As before stated, the court's action clearly comes within the principle stated in Cyc., and in law, also, amounts to an arbitrary refusal of the court to proceed to try and determine certain issues between certain parties in a pending action. The further question, however, is: Has the plaintiff an adequate remedy by appeal? Clearly not. The dismissal does not dispose of the case as between the plaintiff and the other defendants. The case, under our proced- -remedy by ure, therefore, can- appealnot be appealed until final judgment is entered therein between all the parties. sufficiency. (48 Utah, 342, 159 Pac. 737.) When that is done all parties to the action may, however, be satisfied with the judgment, and hence there may be no cause for appeal except on the act of the court in dismissing the case against the Company. In the meantime the question of damages as to the other defendants may be tried to a jury. If the plaintiff, then, must await final judgment as to the other defendants before it can appeal, what are its rights to the strip, and its improvements thereon, pending the action on appeal? It must thus stand bound hand and foot, notwithstanding its order of condemnation and possession, until the action is finally determined, and thus it will be held helpless until this court has passed upon the questions presented by the appeal. That may not occur for several years. The provisions of our statute, which, under certain restrictions that have been complied with by the plaintiff in this case, give the condemnor immediate possession of the land sought to be condemned, and the right to improve it, and to put it to the contemplated public use pending the action, regardless of the time it may be pending, could thus be entirely frustrated. Moreover, the plaintiff must thus submit to have its action tried in parts, and unless, in case of an appeal, the judgment in favor of the other defendants for damages should be reversed by this court, the plaintiff may be required to pay costs and defray the expenses incident to two jury trials. In view of all this, we are of the opinion that the only adequate remedy plaintiff has under the circumstances is a writ of mandate requiring the district court to reinstate the case as against the Company, and to hear and determine the issues as in any other case, and to enter such a judgment upon all the issues as to the court may seem just and right. This brings us to the second branch of the application. Early in June of this year plaintiff's counsel filed a motion, in which they asked the court for an order requiring all of the corporation defendants to permit the plaintiff to inspect and take copies, if so desired, of "all books, contracts, and resolutions, all mortgages, or deeds of So. trust, all books, documents, papers, memoranda, and data, all correspondence, telegraphic or otherwise, originals or carbons, or letter press copies thereof, all bonds, papers, documents, memoranda, data in the possession or under the control of any of said corporations," etc. The motion merely limited the things sought to be inspected or copied to such as might be material or relevant, or might shed some light upon the issues tendered by the pleadings, and such as concerned the dealings of the corporations among themselves. The court refused to make the order, upon the ground that it did not have the power to do Plaintiff now asks that we compel the court to vacate that order, and that it be required to consider the motion upon its merits, and to pass upon it. Here, again, all the corporate defendants insist that mandamus is not the proper remedy, and that the motion is too sweeping and indefinite regarding the things of which inspection is asked, etc. While we are of the opinion that the court gave the wrong reason for its refusal to require the corporate defendants to permit inspection, and that the court, under our statute, has ample power to make such an order, and ordering inthat courts in fur- spection of therance of justice should exercise the powers vested in them so that a full disclosure and development of all relevant and material facts, under the supervision and control of the court, may be Discovery paper. -indefinite. secured, yet we are form of motion |