This original proceeding in prohibition was instituted to restrain the defendant District Court from proceeding further in an action brought before it by James R. Wooderchak and his wife against the plaintiffs for damages for the death of their son on August 28, 1956, allegedly having been caused by the negligence of the plaintiffs here.
The Wooderchaks heretofore filed a claim before the Industrial Accident Board, naming as employer the Clearwater Forest Protective District (herein referred to as the District, to distinguish it from the Plaintiff Association), and its surety. This claim was later dismissed by the Board as to the Wooderchaks, by reason of a letter from their counsel requesting dismissal, but the Board ordered payment to the State of Idaho, as parens patria, under the provisions of I.C. § 72-301.
The District Court action of the Wooderchaks referred to, joined as defendants all the plaintiffs in this action, and the Northern Pacific Railway Company, which company did not join in this application. The complaint in the lower court alleged the Association is unincorporated and consists of the other defendants named in the lower court, as members, officers, or directors. It is further alleged that the State Forester, under authority of I.C. § 38-105, created the District, and appointed a fire warden; that their deceased son was an employee of the District, and working under the direction and control of the fire warden or his subordinates. This complaint alleges the State Forester, under authority of I.C. § 38-134, entered into an agreement with the Association, and the State Board of Land Commissioners of Idaho, and as a part of this contractual relationship, the Association furnished a jeep vehicle used by the Wooderchak youth at the time of the accident.
Negligence is charged in the complaint against the Association in the furnishing of the jeep in its dangerous condition, with actual or constructive knowledge on the part of the defendants of its condition. It is claimed that such negligence was the primary cause of the accident and death of the Wooderchak youth.
The district court defendants (plaintiffs here) moved to dismiss the complaint on the ground it failed to state a claim upon which relief could be granted, and also *133of the matter, it being vested exclusively that the District Court had no jurisdiction in the Industrial Accident Board. This motion was denied, and this application for Writ of Prohibition made.
The Wooderchak youth was employed directly by the District, and not by the Association, he having been hired by the deputy fire warden, who in turn has been hired by the fire warden. The fire warden was employed by the Association and the District. The fire warden hires and supervises both the association and district employees. From a letter of the State Forester in the record, it appears that he did not believe the three party agreement between the State Forester, the Association and Board of Land Commissioners, was applicable, “it — does not cover slash disposal activities.” The Wooderchak youth was allegedly, from his payroll record, being employed on “Slash Disposal” project.
The agreement of the Association, State Forester and Board of Land Commissioners, granted the Association, subject to Forestry Laws, the right to furnish, operate and maintain a protective system for detection, prevention, and suppression of forest fires in the District, providing for reimbursement of costs and expenses from both members of the association and from non-members who had lands in the district. The association agreed to furnish protection of forest lands in the district. It was agreed all State Land in the district was covered by the agreement, with provision for payment of costs.
Under the forestry laws, landowners and timber operators must furnish fire protection during the closed season (June 1 to Sept. 30). If they fail to furnish such protection, the State Forester is required to do so, charging them the actual costs. I.C. §§ 38-107, 38-108. The landowner or operator may contract with the State Forester to assume this responsibility I.C. § 38-404. The State Forester is authorized by I.C. § 38-134 (c) to contract with others for the purpose of fire protection of lands in the district, and he is charged with the supervision, control, and management of all fire hazards created by operators, and fire hazard reduction plans.
The District, the Wooderchak youth’s direct employer, is of statutory creation; the State Forester, as authorized by I.C. § 38-105 created this district and appointed its Chief Fire Warden.
Admitting they were not the direct employers, the plaintiffs claim by reason of the facts and law, to be the Wooderchak youth’s statutory employer under I.C. § 72-10101 and hence that the District Court *134is without jurisdiction to hear the negligence action, citing In re Fisk, 40 Idaho 304, 232 P. 569, and Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831.
The Fisk case was an action under the Workmen’s Compensation Law where an employee of a sub-contractor was killed while hauling material. The principal, the Bonner Tie Company, and its surety, were held liable under what is now I.C. § 72-1010 1, as a statutory employer. There this court stated: 40 Idaho 304, 307, 232 P. 569, 570;
“The company is engaged in the manufacture of ties and match stock, but a part of its business is the sale of its products. The evidence shows that the hauling to the railroad was a necessary incident to the sale of the ties and match stock. We conclude the company was the proprietor or operator of the business carried on at the place of the accident within the meaning of the statute.”
The Nottingham case, supra, was an action in negligence against a claimed third party where an employee of a sub-contractor was killed and the principal contractor held not responsible as a third party; it was held the principal contractor was an employer under the provisions of I.C. § 72-1010, and the case dismissed. This court quoted from O’Boyle v. Parker-Young Co., 95 Vt. 58, 112 A. 385, 386, also quoted in In re Fisk (supra), as follows :
“ * * * Under the provisions of the statute quoted, the true test is, Did the work being done pertain to the business, trade, or occupation of the defendants, carried on by it for pecuniary gain? If so, the fact that it was being done through the medium of an independent contractor would not relieve the defendant from liability.”
These two cases are controlling here only if the record affirmatively discloses that the relationship existing between the Association and the District was such that the Association can be considered as the “general contractor”, or if the record affirmatively discloses that the Association falls within the statutory definition of “employer” set forth in I.C. § 72-1010. If the relationship existing between the District and Association is that of employer and third person, the rule of these two *135cases is not applicable. This court has repeatedly recognized that actions by an employee, his heirs or personal representatives against a third person for damages for personal injuries or death by reason of actionable negligence of a third party, are not abolished by the Workmen’s Compensation Law. I.C. § 72-204 2, Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054; Gifford v. Nottingham, supra; Lake v. State, 71 Idaho 107, 227 P.2d 361; Brown v. Arrington Const. Co., 74 Idaho 338, 262 P.2d 789; White v. Ponozzo, 77 Idaho 276, 291 P.2d 843.
Plaintiffs contend that by the very nature of the Association’s business, i. e., forest protection, and the nature of the business of the members of the association, i. e., landowners of forest land, by custom, necessity and statute, they also are engaged in the business of forest protection, and all are encompassed within the statutory definition of employer and hence immune from the district court action. It is also claimed slash disposal is one of the requirements of forest protection. I.C. § 38-110 :
While this contention may be meritorious after all facts have been fully developed, the record here only discloses that the Wooderchak youth died as a result of a personal injury by accident arising out of and in the course of his employment by the District. The lower court complaint shows he was an employee of the district, working under the direction and control of the Fire Warden or his subordinates. What were his exact duties, the nature of his work, and other pertinent items requisite for full determination of the relationship his particular activities had to that of the Association and its members does not appear, nor is the sphere of activity of the Association and its members as compared to that of the District established. While the agreement of the Association, the State Forester and Land Commissioners is before the court, whether this agreement covers “slash disposal” is questioned by one of the members of this agreement.
*136These factual matters must be decided before full determination can be made as to whether the District Court has jurisdiction to hear the matter, or whether this writ of prohibition will issue. When jurisdiction of a court is dependent on a given fact, the determination of that fact, like other questions of fact, must be first made by the trial court. Pfirman v. Probate Court, 57 Idaho 304, 64 P.2d 849; Robinson v. Robinson, 70 Idaho 122, 212 P.2d 1031.
As stated in Olden v. Paxton, 27 Idaho 597, 150 P. 40, for the writ of prohibition to issue, it is necessary that two contingencies must be shown, “ * * * that the tribunal, corporation, board or person is proceeding without or in excess of the jurisdiction of such tribunal, corporation, board, or person, and that there is not a plain, speedy, and adequate remedy in the ordinary course of law.”
Generally it is regarded that the right to appeal is an adequate remedy at law, in the absence of exceptional circumstances. See Smith v. Young, 71 Idaho 31, 225 P.2d 466, wherein this court quoted from Willman v. District Court, 4 Idaho 11, at page 13, 35 P. 692, the following:
“The ruling of the district court may or may not be correct, but the law provides a ‘plain, speedy, and adequate’ means of testing that question by appeal. It never was the intention or meaning either of the common law or the statute that writs of prohibition or habeas corpus should take the place of appeals. We are not at all in accord with the counsel’s idea of what constitutes an ‘adequate remedy.’ The adequacy of a remedy is not to be tested by the convenience or inconvenience of the parties to a particular case. If such a rule were to obtain, the law of appeals might as well be abrogated at once. * * * ”
The claim of the plaintiffs that by reason of the number of defendants, and the many witnesses that will be required, that they have no plain, speedy, or adequate remedy, we deem to be without merit, as the district court in the first instance can properly determine the matter of jurisdiction, and then, if necessary, an appeal can be perfected.
The necessary contingencies for issuance of the writ of prohibition not having been met, the writ is denied.
Costs to defendant.
KNUDSON, J., and HYATT, D. J., concur.. “§ 72-1010. EMPLOYER — ‘Employer,’ unless otherwise stated, includes any body of persons, corporate or unincorporated, public or private, and tbe legal repre*134sentntive • of a deceased employer. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is not the direct employer of the workmen there employed. If the employer is secured it includes his surety so far as applicable. [1917, ch. 81, § 110a, p. 252; reen. C.L. 256; 110a; C.S. § 6320; I.C.A., § 43-1806.]”
. “72-204. Liability of third persons.— When an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person: provided, if the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee less the employer’s expenses and costs of action. [1917, ch. 81, § 7, p. 252; reen. C.L. 256:7; C.S., § 6220; I.C.A., § 43-1004.]”