Utah Copper Co. v. District Court of Third Judicial Dist.

I concur. As stated by the opinion we are not called upon again to review the questions raised in the case of Utah CopperCo. v. Stephen Hayes Estate, Inc., 83 Utah 545,31 P.2d 624. I think it unnecessary in this case to review, interpret, or comment on the propositions set out and decided in that case. The former opinion is clear and is now the law of the case regardless of whether it is thought to be right or wrong. The fact that counsel contend that this court found facts contrary to the findings of the trial court or decided matters not involved in that suit need not here be considered. It may be conceded that that decision is only the law of the case in so far as it speaks to the matters involved in the appeal or necessary to the decision, but counsel are less likely to get into difficulties by treating as final this court's pronouncements on matters which it thinks are involved in the appeal and in reference to which it has decided, than by seeking themselves to become the final arbiter of what this court should have decided and treat the rest as unessential and immaterial to the appeal.

By what is here said, I do not mean to convey the idea that we should at all hazards adhere to what some former *Page 404 opinion has said. In my dissent to the order denying a rehearing in the case of Rodriquez v. Industrial Commission, 86 Utah 266,38 P.2d 748; Id., 86 Utah 273, 43 P.2d 189, I gave expression to the thought that when it appeared that this court, in the light of more information or deeper insight furnished by the practical way in which our interpretation of the law was working out, found it wise to modify or reverse a former opinion, it should do so. In the case of Atwood v. Cox, Judge, 88 Utah 437,55 P.2d 377, the inconsistency of some of our cases was noted. Likewise, in State v. Hougensen, 91 Utah 351,64 P.2d 229. We are human and amenable to error and I know full well and do not expect otherwise, that many of the opinions which I write will, by the march of events, or by greater minds, be found inadequate. And it may be said if this is so, why not be ready to change in the same case when opportunity is offered. The answer is that a case must, by the orderly processes of the law, come to rest in a certain manner. To open by this extraordinary writ all the questions which were supposedly set at rest by the denial of the petition for rehearing would mean that no one would know whether such denial was really a final disposal of a case. Moreover, the decision in the former review was very special. It did not lay down legal principles which would have wide application. It is doubtful whether ever again that same situation may arise. Where we have gone wrong in a case when the principles are of wide application and much harm would ensue by permitting such decision to persist, I would not want to say that the matter should not be rectified at the first opportunity. But even then, if possible, it were better to bring up a new case. The questions raised in this case do not in any way come under that category.

The only question we have here is whether the proceedings in the court below are in obedience to and in pursuance of the mandate of that former opinion. A writ of mandamus might be sued out to require the court to follow the mandatory part of a decision handed down, but hardly to *Page 405 require the lower court to entertain supplemental pleadings or amendments which would raise matters contrary to or inconsistent with the mandatory part of the decision. I agree that the former decision foreclosed any right to amend the pleadings so as to bring in the question of the condemnation of tracts C and D. Perhaps that opinion should not have required the dismissal of the action as to those tracts, but should have permitted amendments to the complaint permitting condemnation of tracts C and D for a right of way for a pipe line. I can hardly agree in view of the case of Stevens Wallis v. Golden Porphyry MinesCo., 81 Utah 414, 18 P.2d 903, that such would be a change in the cause of action. But the point is that the decision commanded dismissal and that it is the law of the case. I see no other way to affect condemnation for such purposes except by a new action.