I am of the opinion that the judgment of the trial court should be affirmed in its entirety. We are all agreed that, if justice and equity required the disconnection from Mammoth City of the property which the trial court ordered disconnected, the judgment should be affirmed. Our difficulties arise when we try to agree upon what is justice and equity as applied to the facts in this case. The Legislature of Utah granted various enumerated powers to the commissioners and city councils of the cities within the state. The exercise of these powers is expected to result in benefits to the property within the territorial limits of the city. Thus the commissioners or city council, as the case may be, have power to establish and improve streets and sidewalks and regulate the use thereof. They have power to provide a water supply, gas works, electric light works, telephone lines, the building and repairing of sewers and drains, and for police and fire protection. When authorized so to do by the inhabitants, the city council of a third-class city such as Mammoth City has power to build and maintain a public library and gymnasium. They also possess various other powers not necessary to enumerate or consider in this proceeding. *Page 440
When property owners seek to have their property disconnected from a city, under our laws, or laws similar thereto, inquiry in the adjudicated cases is directed toward the results based upon a determination of these propositions: Does the property sought to be excluded from the city receive any direct and special benefit resulting from the exercise of the powers granted to the city? Is it probable that the future growth and expansion of the city will require the territory sought to be disconnected? Is the property sought to be disconnected necessary for the use of the city? If the answers to these three propositions are all in the negative, it is quite generally, if not uniformly, held, and properly so, that equity and justice require that the request of the property owners be granted and the property disconnected from the city. It may be observed, however, that it has been held that, if the property sought to be disconnected destroys the symmetry of the boundaries of the city, such fact is sufficient reason for refusing to allow the exclusion of the territory. Such holding is not applicable here, because the boundaries of Mammoth City were not appreciably marred by the exclusion of the territory ordered by the trial court.
No claim is here made by Mammoth City that the property ordered disconnected by the trial court is necessary for the future growth or expansion of the city. Nor is it claimed that the territory ordered disconnected is necessary to serve any purpose of the city, except as a means of deriving revenue for the city. The trial court found that the property excluded is land that is "of rough, steep, mountainous character, and separated from the inhabited portion of Mammoth by the ridge or summit of a large hill or mountain which renders it impossible to serve such land with roads or to render it accessible from the inhabited portion of the city except by a detour of several miles around said hill or mountain. That none of said territory * * * has any human habitation thereon or any public improvements whatever." Upon the evidence, the trial court's findings in this respect could not be otherwise. All of the land excluded *Page 441 is located in the northeastern corner of the territory constituting Mammoth City. The nearest point between the territory disconnected and the inhabited portion of Mammoth City in a straight line is approximately three-fourths of a mile. The excluded territory is from 1,000 to 1,300 feet higher than the inhabited portion of the city. The only appreciable value of the property excluded is the ore contained therein.
At the time these proceedings were begun Mammoth City had within its boundaries 2,880 acres of land, of which amount 127 acres were platted. All of the residential and business houses are located on the platted portion of the city, except about twenty residential houses, which are located very near the platted portion of the city. During the five-year period preceding the trial of this cause the population of Mammoth City increased slightly, but the number of buildings within the city materially decreased. The inhabited portion of the city has room for two and one-half times as many buildings as are now there located. If the city should grow and expand, in all human probability it will not be up the steep mountain side and over the summit, where the property excluded by the trial court is located.
If the trial court erred in excluding territory from Mammoth City, it is because the disconnected land received a benefit from the exercise of the powers conferred upon the city. Evidence was received that schools are maintained in Mammoth City. As schools are in no way maintained or controlled by the city government, it is difficult to see wherein such fact is material to the issues herein involved. The disconnected territory is assessed to pay for the maintenance of the schools in Juab county whether such schools are within or without the corporate limits of any city. Doubtless there were schools in what is now Mammoth City long before the city was incorporated, and it is certain that schools must be maintained to accommodate the children who reside within what is now Mammoth City so long as there is *Page 442 need for such schools, regardless of whether the territory is or is not within any city. These schools do not receive any of the money derived from the taxes levied for city purposes, and are in no sense dependent upon the city government for their support.
Evidence was also offered tending to show that some of the men who are employed in mining ore from a part of the property excluded reside within Mammoth City. Just what materiality that fact has upon the issue involved in this proceeding is not clear. Certainly the city council cannot control or regulate an employer of labor as to whom he shall employ, nor can it direct the men who reside within the city for whom they shall work. If the basis of the right to tax the excluded property is the fact that the men who work upon such property reside in Mammoth City, then all the petitioners need do to have their property excluded is to employ only such men as reside elsewhere than within the corporate limits of Mammoth City. It would be strange doctrine to hold that, if an employer of labor desires to escape payment of taxes to a city, he must cease employing men who reside within such city. The evidence shows that some of the men who are employed upon the property excluded by the trial court reside at Eureka. There is no evidence showing, or tending to show, that any of the men who are employed on the excluded property would not continue to work upon this property if Mammoth City were disincorporated. I am of the opinion that the fact that some of the men who work in extracting ore from some of the property in question is immaterial, or, if material, it clearly cannot form any basis for holding within the city that portion of the excluded property which is not being, and never has been, worked at all.
It is also contended that there is an interlocking of the interests of the city of Mammoth with the surounding lands. This may be readily conceded. The same kind of interlocking of interests exists between the farm lands surrounding *Page 443 any of numerous cities within the state. There are many cities within this state that would cease to be if the surrounding farms were not worked, and many farms would doubtless suffer very substantially in value, if not become abandoned, if it were not for the nearby cities. I can see no reason why the same principles that this court has applied where farm lands have been excluded from a city should not apply to a case where mining property is likewise sought to be excluded. Thus, if the property sought to be excluded receives a direct and special benefit from the city, such as police and fire protection, or use of electric lights or water from the system of the city, or streets or sidewalks constructed near or abutting the property, or is so situated that drains or sewers may be connected with the property, then such property may properly be held within the city. On the contrary, the property should be disconnected from the city, unless it receives some of the benefits which the city commissioners or city council are empowered to give, and it may not be held within the city because it may receive some of the indirect and general benefits that go to all property situated near a city, unless the needs of the city or its probable future growth and expansion require the retention of the same.
Mammoth City maintains eighteen or nineteen street lights within the inhabited portion of the city. These lights cannot even be seen from the greater part of the property segregated, much less do they tend to develop the same. Mammoth City secures a water supply from a private corporation, but no claim is made that it will ever be able to furnish water to any of the excluded property. While Mammoth City maintains roads, none of these roads go within a distance of 3,000 feet in a straight line from the property segregated.
The evidence shows that Mammoth City has entered into a contract for the purchase of a gymnasium building, but if, perchance, any one should ever reside upon the segregated *Page 444 property, it is quite probable that the exercise such person would receive in going to and from Mammoth City would dispense with the necessity of using the gymnasium.
The evidence in this case affirmatively shows that the segregated territory receives no direct benefit from Mammoth City. I am therefore clearly of the opinion that the trial court properly excluded from Mammoth City the territory indicated on plaintiffs' Exhibit H as tracts 4, 5, and 6 and part of the tract 2, as held in the prevailing opinion.
I concur in the results reached in the prevailing opinion that the respondents are not entitled to any relief upon their cross-assignments of error. Under the holding of this court in the case of Fowers v. Lawson, 56 Utah 420, 191 P. 227, the respondents should have cross-appealed, if they desired a different judgment than that rendered by the trial court.