Doelle v. Mountain States Telephone & Telegraph

872 F.2d 942
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 13, 1989
DocketNos. 87-2669, 87-2811
StatusPublished
Cited by2 cases

This text of 872 F.2d 942 (Doelle v. Mountain States Telephone & Telegraph) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doelle v. Mountain States Telephone & Telegraph, 872 F.2d 942 (10th Cir. 1989).

Opinion

PER CURIAM.

In appeal No. 87-2669, Robert R. Doelle (plaintiff) appeals the district court’s judgment, supported by findings of fact and conclusions of law entered after a bench trial, granting the Mountain States Telephone and Telegraph Company (defendant or Mountain Bell) a permanent easement by condemnation on the plaintiff’s property (the property). In appeal No. 87-2811, the defendant cross-appeals the district court’s award of equitable damages to the plaintiff for the purpose of planting shrubs on the property to screen the plaintiff’s view of the Mountain Bell facilities.1

The district court entered detailed findings of fact. We summarize here those findings that are not challenged by the parties on appeal. In 1948 Mountain Bell, pursuant to a right-of-way granted by one joint tenant, built an aerial telephone line on the property. In April 1982, erroneously relying on the 1948 right-of-way, Mountain Bell trespassed on the property to construct a telephone substation. The plaintiff began residing on the property in the summer of 1984, at which time the view of the substation was obscured by weeds and shrubs. The plaintiff did not discover the Mountain Bell facilities until August 1985. Wonderland Development Association quit-claimed the property to the plaintiff in July 1987. The plaintiff was the fee owner of the property at the time of trial.2

The district court concluded that Mountain Bell had the power of eminent domain to condemn an easement for the substation on the plaintiff’s land. The court further concluded, based on its findings concerning Mountain Bell’s current use of the property, that the condemnation was justified under Utah Code Ann. § 78-34-4 (1987). The court granted Mountain Bell a permanent easement and awarded damages to the plaintiff in the amount of $676.38.

I. APPEAL NO. 87-2669

On appeal, the plaintiff initially challenges three factual findings by the district court. First, the plaintiff challenges the finding that current and future telephone subscriptions increased the demand for service, thereby creating the need for the substation. Second, the plaintiff challenges the court’s finding on the diminution in the value of the plaintiff’s property caused by the condemnation. The plaintiff specifically points to a line of trees for which the district court did not award damages. Third, the plaintiff alleges that Mountain Bell forcibly entered his property with the intent to cause damage. In support, the plaintiff points to the fact that he pad[944]*944locked his property and put up a no trespassing sign.

“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed.R.Civ.P. 52(a); see Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985) (standard governing appellate review of district court’s finding of fact set forth in Rule 52(a)); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 498, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502, 515 (1984) (“We have repeatedly held that ... Rule [52(a) ] means what it says.”). Rule 52(a) applies to all findings of fact, including those described as “ultimate facts” because they may determine the outcome of the litigation. Bose Corp., 466 U.S. at 501, 104 S.Ct. at 1959-60, 80 L.Ed.2d at 517; see, e.g., United States Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1238 n. 22 (10th Cir.1988); see also Anderson, 470 U.S. at 574, 105 S.Ct. at 1511, 84 L.Ed.2d at 528 (same standard applies to findings based on inferences from other facts); Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66, 79 (1982) (“[Rule 52(a) ] does not divide facts into categories; in particular, it does not divide findings of fact into those that deal with ‘ultimate’ and those that deal with ‘subsidiary’ facts.”). After careful review of the record on appeal, we cannot say that the district court’s findings on the increased demand for telephone service from Mountain Bell and the diminution in the value of the plaintiff’s property are clearly erroneous. Similarly, the district court was not clearly erroneous in not finding that the defendant intended to damage the plaintiff's property.3

In addition to challenging the district court’s findings, the plaintiff contends that the court erred by failing to recognize the importance of some of his allegations. None of the additional facts highlighted by the plaintiff, however, undermines the district court’s ultimate conclusion that the defendant was entitled to an easement by condemnation. Accordingly, these arguments do not constitute grounds for reversal of the district court's judgment, and we therefore will not address them on appeal.

The plaintiff also challenges on appeal several of the district court’s rulings on matters of law. The plaintiff principally challenges the district court’s ultimate decision that the defendant was entitled to an easement by condemnation.4 The plaintiff argues first that the district court should not have permitted Mountain Bell to seek inverse condemnation when the defendant did not raise that issue until the pretrial hearing on September 16, 1987. By failing to raise the issue earlier, the plaintiff insists, Mountain Bell forfeited its right to condemnation.

Utah’s statutory law of eminent domain provides an explicit procedure for condemn[945]*945ing property. Utah Code Ann. §§ 78-34-1 to 78-34-20 (1987). Under Utah Code Ann. §§ 78-34-6, 78-34-8, a corporation may seek condemnation by filing a complaint in a court of law. The Utah Supreme Court has held that a defendant in an action for trespass may not counterclaim for condemnation. Peterson v. Bean, 22 Utah 43, 61 P. 213 (1900). In Peterson, the plaintiff sought an injunction to restrain the defendant’s trespass. Id. 61 P. at 214. The defendant’s counterclaim alleged trespass for a public purpose and sought the right of eminent domain. The Utah Supreme Court held that the plaintiff was entitled to damages and that contemplated eminent domain did not constitute a proper defense or counterclaim to an action for trespass. Id. at 215. Here, the district court awarded damages for trespass, including the fair rental value during the time prior to condemnation. To this extent, then, there is no conflict between the holding in Peterson and the district court’s disposition in the present case. The court in Peterson, however, also affirmed the granting of an injunction against further trespass, suggesting a total bar of the defendant’s counterclaim, id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
872 F.2d 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doelle-v-mountain-states-telephone-telegraph-ca10-1989.