59, 138 Pac. 136; Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167; State ex rel. Davis v. Edwards, 33 Utah, 243, 93 Pac. 720; State ex rel. Cutler-Davis v. Cutler, 34 Utah, 99, 95 Pac. 1071; State ex rel. Neilson v. Third Judicial Dist. Ct. 36 Utah, 223, 102 Pac. 868; State ex rel. Burt v. District Ct. 39 Utah, 1, 114 Pac. 143; Salt Lake Coffee & Spice Co. v. District Ct. 44 Utah, . 411, 140 Pac. 666; Utah Asso. v. Bowman, 38 Utah, 326, 113 Pac. 63, Ann. Cas. 1913B, 334; Re Pennsylvania Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141; Cahill v. Superior Ct. 145 Cal. 42, 78 Pac. 467; People ex rel. Sayer v. Garnett, 130 Ill. 340, 23 N. E. 331; State v. Smith, 105 Mo. 6, 16 S. W. 1052; Nevada C. R. Co. v. District Ct. 21 Nev. 409, 32 Pac. 673; Re Morrison, 147 U. S. 14, 37 L. ed. 60, 13 Sup. Ct. Rep. 246; Ex parte Johnson, 25 Ark. 614; Tomkin v. Harris, 90 Cal. 201, 27 Pac. 202; Cariaga v. Dryden, 29 Cal. 307; People ex rel. Polhemus v. Pratt, 28 Cal. 166, 87 Am. Dec. 110; State ex rel. Galbraith v. McCutchan, 119 Mo. App. 69, 96 S. W. 251.

Plaintiff cannot maintain a suit for condemnation when he claims to be the owner of all that is sought to be condemned.

2 Lewis, Em. Dom. 3d ed. § 660; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585; Milwaukee & N. R. Co. v. Strange, 63 Wis. 178, 23 N. W. 432; Colorado Midland R. Co. v. Croman, 16 Colo. 381, 27 Pac. 256; Re Yonkers, 117 N. Y. 564, 23 N. E. 661; Olean v. Steyner, 135 N. Y. 341, 17 L.R.A. 640, 32 N. E. 9; Geneva v. Henson, 195 N. Y. 447, 88 N. E. 1104; Johnstown Min. Co. v. Butte & B. Consol. Min. Co. 60 App. Div. 344, 70 N. Y. Supp. 257; Leavitt v. School Dist. 78 Me. 574, 7 Atl. 600.

Although a suit may be in form one to quiet title, yet if it is in effect an action of ejectment a jury trial is permissible.

Park v. Wilkinson, 21 Utah, 279, 81 Am. St. Rep. 693, 60 Pac. 945; Donahue v. Meister, 88 Cal. 121, 22 Am. St. Rep. 283, 25 Pac. 1096; Newman v. Duane, 89 Cal. 597, 27 Pac. 66; Angus v. Craven, 132 Cal. 691, 64 Pac. 1091.

Frick, J., delivered the opinion of the court:

This is an original application to this court for a peremptory writ of mandate to require Honorable A. H. Christensen, judge of the dis

trict court of Carbon county, Utah, to vacate an order or judgment dismissing the defendant Pleasant Valley Coal Company, hereinafter called Company, as defendant from a certain action pending in said court, wherein the plaintiff in this proceeding is plaintiff, and all of the other defendants above named, including said Company, are defendants, and reinstate said Company as a defendant in said action, and to proceed to try the same against all of the defendants, including said Company. The application was made upon notice duly served upon all of the defendants. All except the Utah Fuel Company have appeared by their respective counsel, and have joined in a demurrer to the application, and have also filed an answer to certain portions thereof. For the purposes of this decision it is not necessary to consider anything except the general demurrer, which has been argued by respective counsel and the cause duly submitted. Neither is it necessary to make any further reference to the defendant Utah Fuel Company, nor to the answer of the defendants, since it presents no issues which affect the result reached by us.

The application is based upon substantially the following facts: Some time in the year 1913, the plaintiff, under the name of Ketchum Coal Company, a corporation owning a coal mine in Carbon county, Utah, and the applicant in this proceeding, hereinafter styled plaintiff, commenced an action in the district court of Carbon county against the defendant above named, and other defendants, to condemn a certain strip of ground to be used for tramway, tunnel, and other purposes in connection with the operation of its coal mine. In July, 1913, an order condemning a certain strip of ground was duly entered by said district court, and the plaintiff was given, and took, possession of the strip condemned as aforesaid. During the first half of this year, however, some of the de

controlling. The controlling question is whether the dismissal can be sustained in law.

As already pointed out, the motion to dismiss was based upon two and two grounds only. All that the court said, as appears from the stenographer's report, is directed to those grounds. From what the court said we are well satisfied that in passing on the motion it based its decision entirely upon the fact that the plaintiff in its reply had set forth that since the action was commenced it had acquired the title to the lands which the Company claimed to own, and therefore, as the court said, the "controversy between plaintiff and defendant (Company)

is purely and

simply a question of quieting the title." The court then goes on to enlarge upon its reasons for dismissing the action, and finally concludes that the question concerning

the title "should be determined outside of the condemnation suit, and the court so holds." In other portions of the court's oral opinion the same grounds are stated. There cannot be any doubt that the court granted the motion upon the sole ground that the plaintiff had set up in its reply that it had acquired the title to the strip of ground to which the Company also claimed title, and that, therefore, the title to the lands in question was involved. The court then held that all questions affecting title should be determined in another action, and for that reason declined to proceed further in that action, except as to those lands to which the plaintiff did not claim

title; and as to all lands to which both it and the Company claim title the proceeding was dismissed.

The Company resists this application upon substantially the following grounds: (1) That mandamus is not the proper remedy; and (2) that the court properly dismissed the action as against the Company for the reason that the plaintiff claims title to the strip of ground in question, and therefore the action as between it and the Company could proceed only as one to quiet the title to the lands claimed by both, and that a condemnation proceeding may not be converted into an action to quiet title.

Many reasons are urged by counsel why mandamus is not the proper remedy, the principal ones being: (1) That the court acted judicially in dismissing the action against the Company; and (2) because plaintiff has an adequate remedy by appeal. We have frequently stated the rule governing mandamus proceedings, and under what circumstances the writ will be granted or denied. The rule and the reasons therefor are discussed in Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167; Carbon County v. Carbon County High School Dist. 45 Utah, 147, 143 Pac. 220; State ex rel. Bishop v. Morehouse, 38 Utah, 234, 112 Pac. Utah, 168, 143 Pac. 232. We shall 169, and Kyrimes v. Kyrimes, 45 not pause to again discuss the rules or the reasons which ordinarily govern the courts in such proceedings except to state that where the writ is sought to compel action on the part of the court the legal right to the particular action which is sought to be compelled by the writ

Mandamus-to compel action

must be clear, and the legal duty to do the act or thing de- by court-when manded on the part

lies.

of the court must be equally clear. In addition to the foregoing there must be a lack of -effect of adequate remedy by remedy by appeal. Mandamus may, however, issue to compel a court to take jurisdiction of a

appeal.

-to compel tak

tion.

-to compel judgment.

-to enforce judgment.

jurisdiction.

therein, and there -refusal of is not an adequate remedy by appeal. The doctrine just attempted to be stated is laid down in 26 Cyc. 190, in the following words: "Where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law, and not as a decision upon the facts, that it has no jurisdiction, and either declines to proceed or disposes of the case, the general rule is that a mandamus to proceed will lie from any higher court having supervisory jurisdiction, unless there is a specific and adequate remedy by appeal or writ of error. Mandamus will not, however, issue to review the decision of a lower court which has refused jurisdiction after determination of fact."

From an examination of the cases, and by keeping in mind the underlying principles which govern courts in granting or denying the writ of mandate, it goes without saying that, unless great care is exercised, the writ in some instances may be improperly granted, while in others it may as improperly be denied. That can occur only, how

4 A.L.R.-40.

ever, when the higher court, without reflection, or without a careful examination of the authorities or close scrutiny of the facts, fails to fully grasp and appreciate the character or nature of the act or thing which is sought to be coerced, and the circumstances under which the court's refusal to act occurs. Some attention must also be given to the difference in the procedure or practice in the jurisdiction where the writ is applied for, as compared with other jurisdictions from which cases are cited.

With the foregoing conditions in mind, let us now proceed to a brief review of the case in hand. As we have seen, the original action was instituted to condemn a certain strip of ground. That the plaintiff had the legal right

to

Judgment-con

condemn, and demnation prothat condemnation ceedings-effect. was for a public use, were settled by the lower court when it entered the order of condemnation, and by which it authorized the plaintiff to take possession of and improve the strip of ground to which now both the plaintiff and the Company claim title.

No legal objection seems to have been made to that order, and no objections were urged to plaintiff's complaint, and none was made to the Company's answer, in which it affirmatively set up its title to the strip. The plaintiff had, however, made one C. N. Sweet and one T. A. Ketchum parties to the original complaint, and had therein alleged that they also claimed title to much of the land which the Company claimed. While the action was pending, however, it seems that T. A. Ketchum obtained Sweet's title, or supposed title, to the lands claimed by the Company, and that plaintiff thereupon acquired whatever title T. A. Ketchum had from him. The facts regarding the acquisition of the title were thus set forth in plaintiff's reply, and in that way, and for that reason, the issue respecting the title to the strip in question, and the particular sub

divisions from which the strip is taken, arose between the plaintiff and the Company. While no objection was interposed to the reply as a pleading, yet, after the cause had been set for trial, the Company interposed a motion to dismiss as against it, for the reasons we have before stated. Are the reasons urged by the Company in support of the court's action sound?

Counsel for the Company have referred us to cases from other jurisdictions, where it is held that when the the title to the ground sought to be condemned is claimed by both the condemnor and the condemnee, the question of title as between them may not be litigated or determined in a condemnation proceeding, but that the question of title must be settled in an independent action, and that the condemnation proceeding cannot proceed until the question of title is settled. The cases of Geneva v. Henson, 195 N. Y. 447, 88 N. E. 1104, and Re Yonkers, 117 N. Y. 564, 23 N. E. 661, clearly reflect the holdings of the courts upon that subject, and hence it is not necessary to refer to other cases.

Con

ceding, however, that the cases from New York, and from other states, that are referred to by counsel, in view of the statutory provisions and the nature of condemnation proceedings in those jurisdictions, are entirely sound, the question here is whether, in view of our constitutional and statutory provisions relating to the nature and character of actions in this jurisdiction, we are justified in following those decisions.

In New York, as well as in many other jurisdictions, condemnation proceedings are special, and the proceeding comes before courts of general jurisdiction only in cases when there is an appeal from the damages awarded to the landowner. In the first instance, therefore, the proceedings are not instituted in courts of general jurisdiction, and the amount allowed either for land taken or for damages to ad

joining lands is not determined by a jury in the ordinary way, as it would be in a court, but it is usually determined by special commissioners or by a special tribunal. Under such circumstances, every lawyer readily understands and appreciates why condemnation proceedings are not deemed proper to try questions of title, and, therefore, such questions must be tried in a court of general jurisdiction; and in case the dispute respecting the title arises between the condemnor and the condemnee, the question of title must be determined in a proper action, and in a proper court, before the damages can be adjusted as between them. Such is, however, not the case in this jurisdiction. Our Constitution (art. 8, § 19) provides: "There shall be but one form of civil action, and law and equity may be administered in the same action."

Matters purely legal and purely equitable may thus not only be determined in the same forum, but they may be tried and determined in the same proceeding or action. Moreover, there is but one form of civil action known to our practice. In passing upon the foregoing provision of our Constitution, this court, in Morgan v. Child, C. & Co. 41 Utah, 562, 128 Pac. 521, held that when it is necessary to settle equitable issues before legal rights are to be determined and adjusted, a separate action to determine the equitable questions is not necessary, and that a party to any action or proceeding cannot be required to adjudicate his equitable rights in a separate action; but he may have all issues, whether equitable or legal, heard and determined in the same action or proceeding. This court in that case, therefore, reversed the lower court's ruling, by which it refused to proceed to determine the legal rights of the plaintiff until he had settled his equitable rights in a proper action in a court of equity.

This court has also held that when in a case both equitable and