Salt Lake City Water & Electrical Power Co. v. Salt Lake City

BARTOH, J. The petitioners made application to this court for a writ of certiorari commanding one of the judges — 291 — of the district court of tbe Third judicial district to certify to the Supreme Court a complete transcript of the record and proceedings relating to the granting of a certain motion by the district court made in a certain action pending in that 1 court. An order to show cause why the writ should not issue was made, and thereupon the record referred to was duly certified to this court, and the questions presented may thus be considered upon their merits. It appears from the certified record that originally the petitioners, Salt Lake City et al., brought an action in that court against the respondents, Salt Lake City Water & Electrical Power Company et al., to quiet title to the water of the Jordan river, and to the right to store the same in the river and Utah Lake. The power company filed an answer in that action, and by counterclaim set up a right to the use, for power-creating purposes, of the water of the river, theretofore appropriated by the plaintiff city, by virtue of an appropriation in accordance with the statute. The power company also instituted condemnation proceedings to condemn the right to make connection with the canal of the city for the purpose of discharging the water, after use by the power company, through a flume across the river, into the canal opposite the respondent’s power-creating plant. Thereafter, in these suits, the power company moved the court for permission to construct its flume and connect it with the canal pending the condemnation proceedings; and at the hearing of the motions the court entered an order permitting the power company and its receiver, pending the action, or until the further order of the court, to occupy the city’s premises and make connection of the flume with the canal, and to discharge the water, after use by the power company, through the flume into the canal, upon executing and filing in the court a bond, to be approved by a judge thereof, in the sum of $5,000. This action of that court the petitioners now seek to have reviewed by means of the writ of certiorari, insisting that they have no other plain, — 292 — speedy, or adequate remedy. Their principal contention appears to be that the action of the court in the premises was erroneous and without its jurisdiction. The respondents insist that the writ of certiorari can not be used to perform the functions of a writ of error, and that the only thing which can be inquired of, under our statutes, by certiox*ari, is whether the inferior court has exceeded its jurisdiction. The same question here presented was before this court in the case of Gilbert v. Board, 11 Utah 378, 40 Pac. 264; and, upon a careful review of authorities and statutes, it was held, adversely to the contention of respondent herein, that on cer-tiorari the appellate court may review the evidence to find if there is any proof to legally warrant the judgment or 2 decision of the inferior tribunal, and whether it had jurisdiction, and whether its proceedings were had in accordance with law. It was there said: “The office of the common-law writ has been much enlarged by statute and decision in cases where there is no other proper remedy, and, in addition to determining questions of jurisdiction, errors in law affecting the substantial rights of the parties may now be corrected, and the testimony may be included in the return, and examined to determine whether there is competent evidence to warrant and justify the judgment of the inferior tribunal. Such enlargement of the writ, however, does not warrant the setting aside of a judgment when it is based on conflicting evidence, nor when there are errors in the proceedings in matters not material as affecting the substantial rights of the party, and not violating any rule of law or affecting the jurisdiction; but where there is an entire absence of proof to support the judgment or decision or order, or where the adjudication made is entirely unauthorized by the proof, it will be set aside and reversed, even though the inferior tribunal had jurisdiction of the person or subject-matter, and so where the proceedings culminating in the judgment are manifestly erroneous, and in violation of those prescribed by law. — 293 — Tbe same rule applies to new jurisdictions created by statute, wben tbe proceedings required are different from those of tbe common law. Tbe examination of tbe evidence by tbe appel-. late court is not for tbe purpose of determining whether tbe preponderance thereof is on one side or tbe other, but to determine whether there is any testimony which will justify the judgment or finding of the inferior tribunal, as a legitimate inference, under the rules of law, from the facts proven, regardless of whether or not the appellate court would draw such inference from such facts. And this power of review on cer-tiorari is recognized as the settled law in England as well as in this country. The English courts have long exercised the power under this writ to review the record and proceedings of inferior tribunals, to determine questions of law arising therein, in eases where there was no other remedy for review.” We have no disposition to depart from the doctrine of that ease, and do not regard this question as any longer an open one in this jurisdiction. The petitioners insist that section 3597, Revised Statutes 1898, which is relied upon to support the action of the court in the premises, is unconstitutional and void, in so far as it authorizes the taking of possession of property sought 3 to be condemned upon the giving of a bond; claiming that a bond is not compensation, nor the equivalent thereto, or to a fund providing compensation for the property to 'be so taken. In that section it is provided: “The plaintiff may move the court or a judge thereof, at any time after the commencement of suit, on notice to the defendant, if he is a resident of the county, or has appeared in the action, otherwise by serving a notice directed to him on the clerk of the court, for an order permitting the plaintiff to occupy the premises sought to be condemned, pending the action, and to do such work thereon as may be required for the easement sought, according to its nature. The court or a judge thereof shall take proof by affidavit or otherwise, of the value of the — 294 — premises sought to be condemned and of the damages which will accrue from the condemnation, and of the reasons for requiring a speedy occupation, and shall grant or refuse the motion according to the equity of the case and the relative damages which may accrue to the parties. If the motion is granted, the court or judge shall require the plaintiff to execute and file in court a bond to the defendant, with sureties to be approved by the court or judge, in a penal sum to be fixed by the court or judge, not less than double the value of the premises sought to be condemned and the damages which will ensue from condemnation, as the same may appear to the court or judge on the hearing, and conditioned to pay the adjudged value of the premises and all damages in casé the property is condemned, and to pay all damages arising from occupation before judgment in case the premises are not condemned, and all costs adjudged to the defendant in the action.” It is claimed that these provisions are repugnant to section 22, article 1, Constitution, which reads: “Private property shall not be taken or damaged for public use without just compensation.” Doubtless, under this provision of the Constitution, no private property can be taken or damaged, by right of eminent domain, for public use, without just compensation being made to the owner; but there is no requirement that compensation must actually precede occupation. It is evident, however, that some reasonable and adequate provision must be made for compensation before the party seeking to condemn has the right to take possession of the premises. Does, then, the portion of the statute above quoted violate the Constitution, in not making reasonable and adequate provision for compensation before occupancy? We think not. It will be noticed that the order provided for in this section of the statute simply permits the plaintiff in the suit to occupy the premises sought to be condemned, temporarily — “pending the action” — for the purpose of doing “such work thereon as may be required for the easement sought, according to its nature,” — 295 — and the bond is provided to secure to the owner the payment of the adjudged value of the property, and all damages in case the property is condemned, and all damages arising from occupation before judgment in case the property is not condemned, and the costs of the action. But these provisions are not the only ones for compensation to be found in the statutes; for when section 3597 is read with 3604, Revised Statutes 1898, as it may be in determining the question whether the Legislature has made reasonable, certain, and adequate provision for compensation where property is sought to be condemned, it will be found that provision is made for the payment into court of the full value of the premises condemned as assessed by judgment upon trial de novo, and such further sum as may be required by the court as a fund to pay all further damages and costs which may be recovered in the proceedings, and all damages which the owner may sustain if the property, for any cause, be not finally taken for public use. And from an examination of the various sections composing the chapter of the Revised Statutes on “Eminent Domain,” it is apparent that, although the plaintiff in a proceeding to condemn may be permitted to occupy the premises for certain purposes pending the suit, before actual compensation has been made, the legal title to the property does not pass until the compensation has been paid. It would thus seem that the several statutory provisions are reasonable and adequate to protect the rights of the owner. Our conclusion, therefore, is that section 3597, Revised Statutes 1898, is not repugnant to section 22, article 1, Constitution, but is a valid enactment, and that with section 3604 the'statutory provision for compensation is wholly sufficient to meet the requirements of the Constitution. We are aware that the decisions of the several states respecting the question above determined are not all harmonious and are irreconcilable, but the decided weight of authority, where the constitutional provisions on this subject are similar to ours, doubtless sustains the conclusion reached herein. In — 296 — section 456, 2 Lewis, Em. Dom., it is said: “In most states it is Leld that tbe making of compensation need not precede an entry upon the property, provided some definite provision is made whereby the owner will certainly obtain compensation.” The Supreme-Court of Massachusetts, in Old Colony R. Co. v. Framingham Water Co., 153 Mass. 561, 27 N. E. 662, 13 L. R. A. 332, held that a statute empowering a town water company to take land, and providing that the damages therefor might be assessed as in the case of the laying out of highways, and that the company might be required to give security for such damages, “satisfactory to the selectmen of said town,” failing which its rights should be suspended except for making surveys, made adequate provision for compensation for the land taken. In Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295, Mr. Justice Harlan, delivering the opinion of the court, said: “It is further suggested that the act of Congress violates the Constitution, in that it does not provide for coinpensation to be made to the plaintiff before the defendant entered upon these lands for the purpose of constructing its road over them. This objection'to the act can not be sustained. The Constitution declares that private property shall not be taken Tor public use without just compensation.’ It does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed.” And again he observed: “The plaintiff asks, what will be its condition, as to compensation, if, upon the trial de novo of the question of damages, the amount assessed in its favor should exceed the sum which may be paid into court by the defendant? This question would be more embarrassing than it is, if by the terms of the act of Congress the title to the property appropriated passed from the owner to the defendant, when the latter, having made the required deposit in court, is authorized — 297 — to enter upon tbe land pending tbe appeal, and to proceed in tbe construction of its road. But, clearly, tbe title does not pass until compensation is actually made to tbe owner. Within tbe meaning of tbe Constitution, tbe property, although entered upon pending tbe appeal, is not taken until tbe compensation is ascertained in some legal mode, and, being paid, tbe title passes from tbe owner.” 2 Lewis, Em. Dom., secs. 457-462; Mills, Em. Dom., sec. 124; Nichols v. Railroad Co., 43 Me. 356; Railroad Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564; In re United States Com’rs, 96 N. Y. 227; Cushman v. Smith, 34 Me. 247; Rider v. Stryker, 63 N. Y. 136; Doe v. Railroad Co., 1 Ga. 524; Wellington & P. R. Co. v. Cashie & C. R. & Lumber Co., 116 N. C. 924, 20 S. E. 964; Walther v. Warner, 25 Mo. 277; Railway Co. v. Payne, 4 U. S. App. 77, 1 C. C. A. 183, 49 Fed. 114; Kennedy v. City of Indianapolis, 103 U. S. 599, 26 L. Ed. 550; Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. 43, 40 L. Ed. 188; Backus v. Depot Co., 169 U. S. 557, 18 Sup. Ct. 445, 42 L. Ed. 853. Tbe remaining question of importance presented herein (tbe same relating to section 6, article 11, Const.) was passed upon in tbe case of Salt Lake City v. Salt Lake City Water & Electrical Power Co., 24 Utah 249, 67 Pác. 672, and requires no further discussion here. We are of tbe opinion that tbe action of tbe court below in tbe premises was neither in excess of jurisdiction nor erroneous, but was in pursuance of authority, and the order in question must be affirmed, with costs. It is so ordered. MINEE, C. J"., concurs.