In my opinion the judgment of the court below on the main issue, viz., the right of plaintiff to condemn the property in question, should be affirmed. There is merit in appellants' claim that all of the costs in the trial court should not have been taxed against them, but, in light of the fact that my associates are of the opinion that the judgment of condemnation should be reversed, I shall confine my remarks to the main question. I concur in the view expressed in the prevailing opinion that the two tracts of land referred to as C and D are subject to condemnation for mining purposes within the meaning of R.S. Utah 1933, title 104, c. 61. Even though it should be held that Dixon Gulch is neither a canal, ditch nor aqueduct within the meaning of the statute, it is clearly a dumping place when used for that purpose within the meaning of R.S. Utah 1933, 104-61-1, subd. 6. Had plaintiff company sought to condemn tracts C and D for a dumping place for its ores, it could not be successfully maintained that such proposed use is not a public use within the meaning of the statute. By its action plaintiff company in effect seeks the right to dump its ores, in the form of a copper solution, onto or into the land sought to be condemned, and the further right to reclaim its ore after it has passed over or through the condemned land. Much is said in the briefs of counsel about the law with respect to percolating water. It seems to be defendants' position that percolating *Page 570 water is not a subject of condemnation. If, as is urged by them, percolating water is a part of the soil and belongs to him who owns the soil, it necessarily follows that, when the soil is condemned, so likewise is the percolating water therein condemned. To hold that percolating water cannot be condemned would, in effect, be to hold the soil itself cannot be condemned. Whether the condemner seeks merely a right of way over the land of another or a fee-simple title, the result of the condemnation, in many instances, deprives the owner of the condemned property not only of the soil but of the percolating water therein.
Under our statute a condemner may, when necessary to condemn, take "a fee simple, when taken for public buildings, for reservoirs and dams and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine, mill, smelter or other place for the reduction of ores; provided, that where surface ground is underlaid with minerals, coal or other deposits sufficiently valuable to justify extraction, only a perpetual easement may be taken over the surface ground over such deposits." R.S. Utah 1933, 104-61-2. In this case the defendants claim the property sought to be condemned contains valuable minerals. Accordingly the court below, by the judgment appealed from, limited plaintiff's right to an easement and reserved to the defendants the right to mine any ores that may be found in or upon the property in question. The easement granted plaintiff by the judgment extends to the rockbed of Dixon Gulch. Apparently appellants' attack upon the judgment is not bottomed so much upon the claim that it is greater in extent than necessary, but upon the claim that they, and not the plaintiff, are entitled to the copper solution as soon as it escapes in their land from that of plaintiff. Such, as I understand it, is the view entertained by my associates. I readily concede that defendants were the owners of the copper solution which was percolating in defendants' land at the time and prior to the time that *Page 571 the court below made its order granting plaintiff the right to occupy the land. But it by no means follows that defendants are entitled to the copper solution which percolated through plaintiff's dumps into the land in question after the court below entered its order granting plaintiff the right of occupancy. By granting plaintiff leave to occupy the land for the purpose sought by the condemnation proceedings, the possession, not only of the land but also the copper solution which thereafter percolated through such land, was in the plaintiff. It would be sheer mockery to permit plaintiff to condemn tracts C and D and then deny to it the right to use the land so condemned for the very purpose sought by the condemnation proceedings. Defendants do not claim that they have any vested interests in the copper so long as it remains in plaintiff's dump, nor do they claim that plaintiff is without right under the law of this state to condemn a right of way across tracts C and D for the purpose of transporting its copper from its dumps to its tanks where the copper is precipitated. If either of such claims were made, it could not be successfully maintained. The copper in plaintiff's dump is the product of its industry. In this state a use of property for mining purposes is made a public use, and the right of eminent domain is granted to those engaged in mining. If, therefore, tracts C and D or so much thereof as lie above bedrock are reasonably necessary for plaintiff's use, the judgment of condemnation should be affirmed, otherwise not. It is urged by defendants that plaintiff may save the copper in its dump by a means other than that which it plans to use. It is suggested that a cement retaining wall may be constructed on bedrock around the toe of plaintiff's dump for the purpose of collecting the copper solution which comes out of the dump, and that, when the copper solution is so collected, it may be transported over defendants' land by means of a pipe to plaintiff's settling tanks. Some evidence was offered at the trial concerning the feasibility of plaintiff using that method of getting its copper from its dump to its precipitating tanks. The evidence, *Page 572 however, touching that question is far from satisfactory, especially is that so in the light of the fact that plaintiff is the owner of about two-thirds of the copper which is contained in the fill which was constructed across Dixon Gulch by the Bingham Garfield Railway Company. There is no evidence tending to show that it is practicable for plaintiff company to construct an impervious cement wall on bedrock in the railroad fill so that the copper solution coming from plaintiff's dump, and from the two-thirds of the railroad fill owned by plaintiff, may be collected above such a wall and thence diverted into a pipe and transported to plaintiff's precipitating tanks. From the very nature of such a venture, the probable cost thereof, and the likelihood of its causing injury to the railroad track over the fill, plaintiff should not be denied the right to condemn the property in question upon such a pretext. When the right to condemn property for public use is established, the nature and extent of the right is largely a matter for the determination of the condemner. It is earnestly urged on behalf of defendants, and in the views expressed in the prevailing opinion, that, unless plaintiff reduces the copper solution into its actual possession and control before it leaves its dump or its part of the railroad fill, plaintiff forfeits its right thereto, and the ownership thereof vests in the defendants as soon as it enters their premises. I am unable to agree with such doctrine. I repeat what I have already said, if plaintiff condemns tracts C and D to bedrock, which I think they should be permitted to do, then, and in such case, the constructive possession of the copper solution percolating through the soil when condemned would be in plaintiff. I know of no principle of law which would give to the defendants any right to the copper solution which is the product of plaintiff's industry or which is percolating in solution through soil which plaintiff has condemned, nor do I know of any sound basis in either logic or law why constructive possession of property or a property right may not prevent a forfeiture of such property or property right as well as may *Page 573 actual possession thereof. If plaintiff were to remove the loose material from the bottom of Dixon Gulch so that the copper solution would course down the gulch along bedrock, defendants seem to concede that they would be without right to the copper solution. To my mind the distinction is without merit. The burden cast upon the land in tracts C and D would be as great, if not greater, if the copper solution were permitted to flow on bedrock in an open cut down Dixon Gulch instead of percolating down the gulch through the soil in its natural state. If plaintiff may retain its right to the copper solution by permitting it to course down Dixon Gulch through an open artificial cut, it should not be denied that right merely because the cut is a natural one nor because loose rock and other material are superimposed upon the bedrock of the gulch. After all, whether the copper solution flows over the soil or through the soil above bedrock down Dixon Gulch, the nature of plaintiff's possession thereof during the time it is so flowing is substantially the same. To require plaintiff to construct impervious walls on bedrock at the toe of its dump, or in the railroad fill, to collect the copper solution, or to require it to excavate an open cut to bedrock down Dixon Gulch, would in no way, so far as is made to appear, lessen the damage done to or the burden cast upon tracts C and D. Such a requirement would cast upon the plaintiff a heavy, if not an insurmountable, financial outlay without any apparent benefit to the defendants. The purpose sought to be accomplished by the law of eminent domain is to avoid such results.
Appellants claim that their position is supported by the case of Utah Copper Co. v. Montana-Bingham Consol. M. Co., 69 Utah 423,255 P. 672, 674. There is nothing decided or said in that case, as I read it, which precludes the plaintiff in the instant case from maintaining the judgment of condemnation here sought to be reversed. In that case plaintiff was attempting to condemn an easement from its dump over the surface of defendant's land for the purpose of collecting *Page 574 the copper solution which came from plaintiff's dump. The trial court held that plaintiff was entitled to maintain its action in condemnation. The right of plaintiff to condemn was by this court affirmed. Appellants seem to place considerable reliance upon the following language used by this court in that case:
"It may be conceded that the waters, though they carry copper in solution picked up from the dump as they seep through it, after they were suffered and permitted to flow out of the dump and seep and percolate through soil and earth on the claim or claims of the defendant not conveyed to the plaintiff became a part of such soil and earth and the property of the defendant, and thus lost to the plaintiff."
I am unable to see wherein the language just quoted is in any sense controlling here. In this case it may be conceded that the copper solution which escaped from plaintiff's dump prior to the time of the entering of the order permitting plaintiff to occupy the premises sought to be condemned was lost to the plaintiff. If, however, it be conceded, as I think it must, that plaintiff may condemn the property here involved, then the copper solution ceased to escape from plaintiff's land into those of the defendants when the property was condemned. In the former case the plaintiff sought merely a surface easement, while here it seeks an easement to bedrock, but in the light of our statute which permits, if necessary, the condemnation of a fee-simple title, such distinction is by no means controlling. If a fee-simple title may, when necessary, be condemned, it follows that any right less than a fee-simple title may likewise be condemned.
As already indicated, about one-third of the railroad fill of the Bingham Garfield Railway Company is on land which is owned by defendants subject to the easement of the railway company. From such fact the trial court concluded that the portion of the railway fill which was on defendants' land belonged to them. No error is assigned because of such conclusion. The material in the railway fill is similar in *Page 575 copper content to that in plaintiff's dump. It is urged by defendants that, if the judgment of condemnation appealed from is affirmed, they will be deprived of the copper which comes from that part of the railway fill which is on their land and which belong to them. Such results do not follow an affirmance of the judgment. It is provided by R.S. Utah 1933, 104-61-3, subd. 5, that:
"All rights of way for any and all purposes mentioned in section 104-61-1, * * * shall be * * * subject to a limited use in common with the owners thereof. * * *"
The fact that plaintiff may use Dixon Gulch as a means to convey its copper solution to its precipitating tanks does not preclude defendants from using the gulch for a like purpose. While the copper solution belonging to plaintiff, as well as that belonging to defendants, would necessarily be commingled while flowing down Dixon Gulch, it would apparently be an easy matter to divide the solutions equitably after they had passed through tracts C and D. If, as appears, the material in plaintiff's dump and the railway fill contain substantially the same percentage of copper, it would seem to follow that the copper solution would be owned by the parties in proportion to the amount of copper-bearing materials owned by each of the parties. However, this action was not brought for the purpose of determining the relative rights of the parties to the copper solution which finds its way down Dixon Gulch, and therefore the relative rights of the parties to the copper solution are not before us for adjudication. The judgment, in so far as it grants plaintiff the right to condemn the property in question, should be affirmed. *Page 576