             This opinion is subject to revision before final
                  publication in the Pacific Reporter.

                              2013 UT 25

                                IN THE
      SUPREME COURT OF THE STATE OF UTAH
                        ———————
                  SCHROEDER INVESTMENTS, L.C.,
                     Plaintiff and Appellant,
                                   v.
  CLYDE C. EDWARDS, LINDA K. EDWARDS, UTAH DEPARTMENT OF
            TRANSPORTATION, and DOES 1 through 10,
                   Defendants and Appellee.
                       ———————
                        No. 20110910
                      Filed May 3, 2013
                       ———————
                 Fourth District, Provo Dep’t
               The Honorable Darold J. McDade
                       No. 090404414
                       ———————
                          Attorneys:
       Troy L. Booher, Noella A. Sudbury, Wade R. Budge,
                  Salt Lake City, for appellant
 John E. Swallow, Att’y Gen., Brent A. Burnett, Asst. Att’y Gen.,
                   Salt Lake City, for appellee
                         ———————
    JUSTICE LEE authored the opinion of the Court, in which
   CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
          JUSTICE DURHAM, and JUSTICE PARRISH joined.
                         ———————

 JUSTICE LEE, opinion of the Court:
  ¶1 The Utah Department of Transportation (UDOT) owns a
piece of property used as a detention pond in Provo, on land adja-
cent to property owned by Schroeder Investments. Schroeder filed
a condemnation action, asserting a right to condemn a portion of
UDOT’s parcel to construct an access road to the development
Schroeder planned to build on its property.
  ¶2 UDOT moved for summary judgment. It invoked the
―more necessary public use‖ provision of the eminent domain
statute, which provides that property ―already appropriated to
            SCHROEDER INVESTMENTS, L.C. v. EDWARDS
                       Opinion of the Court

some public use‖ may not be appropriated for another unless the
second public use is ―more necessary.‖ UTAH CODE § 78B-6-
504(1)(d). Schroeder conceded that UDOT’s pond was more nec-
essary than its proposed road. But it sought to invoke an excep-
tion to the more necessary public use requirement—a so-called
doctrine of ―compatible uses,‖ which purportedly allowed the
condemnation if the pond and proposed road could coexist. The
district court granted summary judgment for UDOT, finding that
the uses were incompatible because UDOT’s pond left no room
for Schroeder’s proposed road.
  ¶3 On appeal, Schroeder challenges the district court’s invoca-
tion of the more necessary public use doctrine and its refusal to
allow an exception under the doctrine of compatible uses. We af-
firm. Schroeder’s version of the compatible use exception is un-
supported by our relevant caselaw and incompatible with our em-
inent domain statute, which leave room for an exception only
where property has not yet been dedicated fully to another public
use.
                                 I
  ¶4 Schroeder Investments wanted to construct a self-storage
facility on its property just off Interstate 15 in Provo. Though not
directly accessible from any public street, Schroeder’s property
could be reached via a 16.5-foot easement across adjoining land
owned by Clyde and Linda Edwards. Provo City development
requirements, however, mandated that the self-storage facility be
accessible by a road at least 24-feet wide.
  ¶5 To satisfy this development requirement, Schroeder at-
tempted to purchase a widened easement. When negotiations for
the sale ultimately stalled, Schroeder initiated a condemnation ac-
tion in late 2009.
  ¶6 During the pendency of that action, UDOT sought to pur-
chase the Edwards property for construction of a detention pond,
necessitated by its I-15 CORE highway expansion project. After
some negotiation, the sale went through, and UDOT moved for-
ward with its detention pond construction plans. Schroeder sub-
sequently amended its complaint in the condemnation action to
include UDOT.
  ¶7 UDOT immediately moved for summary judgment, assert-
ing the ―more necessary public use‖ doctrine. In response,

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                       Opinion of the Court

Schroeder conceded that UDOT’s use was more necessary, but as-
serted that the ―more necessary public use‖ doctrine was inappli-
cable due to the ―compatible use‖ exception.
  ¶8 Under Schroeder’s version of this exception, there was no
need to determine whether a proposed or existing use was ―more
necessary‖ where both uses could peacefully coexist. And alt-
hough UDOT’s detention pond occupied its entire property (other
than Schroeder’s existing easement), leaving no room for
Schroeder’s proposed use, Schroeder claimed that the detention
pond and its proposed road were still compatible because UDOT
could modify its detention pond by moving it so that it would
partially occupy a piece of Schroeder’s adjoining parcel. Schroeder
offered to donate this adjoining property to UDOT and also to
compensate it for the cost of modifying the detention pond.
  ¶9 Despite this offer, the district court granted summary
judgment for UDOT. It concluded that UDOT’s property had al-
ready been fully ―appropriated to some public use‖ (a detention
pond) that left no room for Schroeder’s proposed road, such that
the ―more necessary public use‖ doctrine was applicable and the
―compatible use‖ exception was unavailable. Schroeder appeals.
Our review is de novo. See Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d
56 (―[T]he appellate court reviews a summary judgment for cor-
rectness, giving no deference to the [district] court’s decision.‖).
                                 II
  ¶10 Schroeder Investments finds fault in the district court’s re-
jection of its version of the compatible use exception. Under
Schroeder’s version, two uses are treated as compatible if they can
coexist—even if the first use occupies the property in full, and
even if a condition of their coexistence is payment of compensa-
tion.1 Schroeder claims that its proposed road is compatible with


 1 Schroeder also faults the district court for purportedly holding
that the compatible use exception is available only where existing
and proposed uses are of the exact same type. That was not the
basis of the district court’s ruling, however. Rather, the court de-
termined that ―the proposed Schroeder public use is not compati-
ble with the greater necessary UDOT public use because UDOT’s
use is of full capacity of the land and there is nothing left to con-
demn.‖ (Emphasis added).

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            SCHROEDER INVESTMENTS, L.C. v. EDWARDS
                       Opinion of the Court

UDOT’s detention pond (even though the pond occupies UDOT’s
property in full) because Schroeder is willing to both (a) donate a
piece of its adjoining property so that UDOT can move its deten-
tion pond to accommodate Schroeder’s proposed road and
(b) compensate UDOT for the cost of its modifications. Given this
compatibility, Schroeder claims there is no need to prioritize be-
tween the uses to determine which is more necessary. We disa-
gree and accordingly affirm.2 Schroeder’s broad, compensation-
based formulation of the compatible use exception is unsupported
by our caselaw and also runs afoul of the governing statute. As to
the public policy grounds proffered by Schroeder in support of his
version of compatible use, moreover, we find them insufficient—
and rooted in a mistaken understanding of our authority in this
field.
                                 A
  ¶11 ―[T]aken together,‖ Schroeder views two of our cases—
Monetaire Mining Co. v. Columbus Rexall Consolidated Mines Co., 174
P. 172 (Utah 1918), and Postal Telegraph Cable Co. of Utah v. Oregon
Short-Line Railroad Co., 65 P. 735 (Utah 1901)—as ―provid[ing] the
foundation‖ for its version of the compatible use exception. We
see these cases differently.
  ¶12 In each of these two cases, the condemned property was
not being used to its full capacity. And it was this point, not the
broad compensation-based principle identified by Schroeder, that
supported our conclusion in these cases that the proposed and ex-
isting uses were compatible. More importantly, it is this same nar-
row distinction—not the principle of compensation—that allows
the ―compatible use‖ exception articulated by those cases to be
reconciled with the eminent domain statute’s ―more necessary
public use‖ requirement, see UTAH CODE § 78B-6-504(1)(d).
                                 1
 ¶13 Monetaire Mining and Postal Telegraph each implemented a
version of the compatible use exception that allowed the unused
portion of a parcel of property dedicated to public use to be taken

 2  In so doing, we decline to reach an alternative ground for af-
firmance proffered by UDOT—that property may be taken only
for ―a use authorized by law,‖ see UTAH CODE § 78B-6-504(1)(a),
and that Schroeder’s proposed use is not authorized.

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                        Opinion of the Court

and put toward a different public use—even where that use was
not more necessary. In Monetaire Mining, for example, we held
that the plaintiff mining company could condemn an easement
that would allow it to share a mining tunnel owned by the de-
fendant mining company. 174 P. at 176. While conceding that the
second use was not ―more necessary‖ than the first, we nonethe-
less upheld the condemnation on that ground that the plaintiff
sought ―not to appropriate [defendant’s] tunnel and to dispossess
the latter of its property rights therein or of its use,‖ but rather ―to
condemn the unused capacity of the tunnel.‖ Id. (emphasis added).
We also noted that if the tunnel had already been used ―to its full
capacity,‖ there would be ―nothing left to condemn‖ and that in
that event the more necessary public use doctrine would foreclose
the condemnation because ―all that the condemner gets, or can
get, is the right to use that which the present . . . owner does not
or cannot use.‖ Id.
  ¶14 The same principle was at work in Postal Telegraph. Postal
Telegraph involved a telegraph company’s attempt to condemn a
portion of a railroad’s existing right of way in order to construct
telegraph poles, to be located ―30 feet from the outer edge of the
railroad track.‖ 65 P. at 736–37. The railroad company sought to
challenge this condemnation on the ground that the land was ―al-
ready devoted to a public use, and that the condemnation for tel-
egraph purposes will not be devoting it to [a] more necessary
public use.‖ Id. at 738. We rejected this argument on the ground
that the ―land which respondent seeks to condemn is not now used
for any purpose‖ and was ―[p]ractically . . . now idle property.‖ Id.
at 738–39 (emphasis added). Thus, the telegraph lines would ―not,
in the nature of things, interfere with the operation of appellant’s
railroad.‖ Id. at 739. Given that the ―new use promise[d] to be one
of public utility,‖ id., we accordingly allowed this unused proper-
ty to be taken.3


 3 In fact, it appears that the compatible use exception was un-
necessary to our decision in Postal Telegraph Cable Co. of Utah v.
Oregon Short-Line Railroad Co., 65 P. 735 (Utah 1901). Because the
land was ―not essential to the enjoyment of [the railroad’s] fran-
chises and property,‖ it seemed apparent that the proposed tele-
graph line was ―to and for a more necessary public use.‖ Id. at
739.

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            SCHROEDER INVESTMENTS, L.C. v. EDWARDS
                       Opinion of the Court

                                  2
  ¶15 Schroeder seeks to recast these cases in a different light. In
Schroeder’s view, these cases authorize condemnation whenever
the condemner is willing and able to compensate the property
owner for modifications necessary to make the uses compatible.
We are not persuaded.
  ¶16 Schroeder is right to note that Postal Telegraph mentions
compensation, but that mention had nothing to do with the sort of
compensation Schroeder has in mind. In Postal Telegraph, the pro-
posed use of the property (for telegraph lines) was not the type of
use that would interfere at all with the existing use of the property
(for the railroad right of way). 65 P. at 737–39. The right of way for
the railroad was, after all, 100-feet wide, and the railway was
placed in the middle of the right of way. Id. at 737. This left sub-
stantial room on either side of the track. Id. And the telegraph line
was to be built a full thirty feet from the edge of the track, on land
that was ―not now used for any purpose,‖ and in a manner that
would ―not, in the nature of things, interfere with the operation of
appellant’s railroad.‖ Id. at 737–39.
  ¶17 Thus, while we noted that the telegraph company was re-
quired to provide ―just compensation,‖ id. at 739, the compensa-
tion in question was not a condition or element of a showing of
compatible use. It was simply a reflection of the constitutional re-
quirement of just compensation for taking a piece of the railroad’s
right of way (which of course was compensable property, even if
it had not yet been dedicated to a public use). This is not the type
of compensation Schroeder has in mind—compensation for modi-
fying an existing public use—and Postal Telegraph is accordingly
of no benefit to Schroeder’s position.
  ¶18 Monetaire Mining is a somewhat closer case, since it both
(a) required payment of compensation and (b) indicated that some


  A federal case cited by Schroeder, Freeman Gulch Mining Co. v.
Kennecott Copper Corp., 119 F.2d 16 (10th Cir. 1941), is along the
same lines. In Freeman Gulch, the ―compatible use‖ exception was
likewise unnecessary because there ―the facts demonstrate[d] be-
yond question that the use for which Kennecott [sought] condem-
nation [was] a more necessary public use than the use to which
the property [was] being devoted by Freeman.‖ Id. at 20.

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                       Opinion of the Court

modifications might need to be made to the mining tunnel in or-
der to permit joint use. See 174 P. at 174, 176. A careful reading of
Monetaire Mining, however, reveals that the compensation re-
ferred to there was compensation for taking the unused tunnel
capacity, not compensation for modifications. After all, we noted
in our opinion that we would have prohibited the taking in the
absence of unused capacity. Id. at 176 (explaining that if the tunnel
had been used ―to its full capacity, then there [would be] nothing
left to condemn,‖ such that the condemnation suit could not have
proceeded). And presumably, to the extent we thought modifica-
tions could make otherwise incompatible uses compatible, we
would have permitted them, even where there was no unused ca-
pacity. Yet we concluded otherwise, indicating that the compensa-
tion referred to was not compensation for modifications but for
the taking of property rights (tunnel capacity).
  ¶19 Moreover, even if Monetaire Mining could be read to en-
compass a broader principle of compensation, it still would not
support Schroeder’s version of the compatible use exception.
Monetaire Mining involved a unique statutory provision. That
provision specifically allowed ―the right of eminent domain [to]
be exercised in behalf of . . . any occupancy in common by the
owners or possessors of different mines.‖ Id. at 174–75 (internal
quotation marks omitted). We interpreted this statutory scheme to
―expressly grant[]‖ ―the power to condemn rights of way for tun-
nels,‖ including the right to use them ―in common with the own-
ers thereof, when necessary, etc.‖ Id. at 175 (internal quotation
marks omitted).
  ¶20 Thus, in Monetaire Mining we were required to reconcile
(a) specific statutory language clearly contemplating some use in
common of mining tunnels with (b) the general more necessary
public use requirement.4 Any suggestion that compensation might
substitute for true compatibility accordingly resulted from the


 4  To the extent the Tenth Circuit’s invocation of the compatible
use exception was appropriate in Freeman Gulch, 119 F.2d at 19–20,
it was on similar grounds. Freeman Gulch, like Monetaire Mining,
involved application of both (a) a statute that contemplated joint
use for mining purposes and (b) the general more necessary pub-
lic use requirement. See id. at 19 n.3. Schroeder’s reliance on this
case is accordingly unavailing.

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             SCHROEDER INVESTMENTS, L.C. v. EDWARDS
                        Opinion of the Court

need to give ―all . . . provisions of our statute . . . a fair and rea-
sonable application and effect.‖ Id. Schroeder, however, cannot
point to any specific statute—like the one in Monetaire Mining—
suggesting that a road and detention pond should be permitted to
coexist. Thus, neither of the governing cases support Schroeder’s
view that incompatible uses generally can be made compatible by
the payment of compensation. Nor could they in light of the clear
terms of the eminent domain statute—terms we are not free to
override through our caselaw.
                                  3
  ¶21 That statute speaks in unequivocal, categorical terms. It de-
clares that property ―already appropriated to some public use‖
may be appropriated to another public use only if ―the public use
to which it is to be applied is . . . more necessary.‖ UTAH CODE
§ 78B-6-504(1)(d). Thus, where property has already been appro-
priated to one public use, the statute allows a taking only for a more
necessary public use.5
  ¶22 In light of this requirement, it is one thing to acknowledge
a narrow exception allowing a second public use where the first
does not fully occupy the property in question—the exception
recognized in our caselaw. Such an exception is at least arguably
compatible with the statutory text, as in such circumstances it can
plausibly be said that there is property that is not ―already appro-


 5  This statutory requirement also forecloses Schroeder’s reliance
on Boston Water Power Co. v. Boston & Worcester Rail Road Corp., 40
Mass. (23 Pick.) 360. The Boston Water opinion does seem to sanc-
tion a broad, compensation-based principle of compatible use—
suggesting that multiple uses should be permitted where ―[b]oth
uses may well stand together, with some interference of the later
with the earlier, which may be compensated for by damages.‖ Id.
at 398. But the case is of limited value because there was no ―more
necessary public use‖ doctrine in play in Boston Water. Rather, in
Boston Water the court was required to reconcile conflicting char-
ters given to a hydroelectric power generation company and a
railroad. Id. at 390–91. That case is thus of little consequence under
Utah law. Our statute’s ―more necessary public use‖ requirement
contemplates prioritization of conflicting public uses (not reconcil-
iation of them, as in Boston Water).

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                       Opinion of the Court

priated to some public use.‖ But the statute leaves no room for a
version of the exception that would permit a taking even where a
parcel had already been appropriated in its entirety—the excep-
tion Schroeder advances—because the statute nowhere suggests
that compensation is an alternative to compliance with the ―more
necessary public use‖ requirement.
  ¶23 Even if our caselaw did sanction the broad exception sought
by Schroeder, we would have no choice but to repudiate it. In a
case like this one where the statute speaks directly to the issue be-
fore us, supra ¶¶ 21–22, the statute is supreme. See I.M.L. v. State,
2002 UT 110, ¶ 25, 61 P.3d 1038 (―[W]e will not infer substantive
terms into the text [of a statute] that are not already there. Rather,
[our] interpretation must be based on the language used, and [we
have] no power to rewrite the statute to conform to an intention
not expressed.‖ (first and fourth alterations in original) (internal
quotation marks omitted)). And in such a case, our judicial role is
secondary (interpretation), not primary (policymaking). See Berrett
v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994) (declining to
adopt an interpretation that would have ―require[d] us to change
the existing language and meaning‖ of a statutory section because
doing so ―would constitute judicial legislation and the assumption
of powers beyond those of this court‖). Our interpretation may
not exceed the statutory bounds set by the legislature.
                                  B
  ¶24 Schroeder’s invocation of public policy runs afoul of this
same principle. According to Schroeder Investments, the broad
exception it advocates furthers the public welfare by maximizing
the number of public uses that may be accommodated on an indi-
vidual parcel of property.
  ¶25 This argument fails at the threshold, as it misconceives the
role of the court. Any request that we override clear statutory text
on policy grounds ―misperceives the judicial function.‖ VCS, Inc.
v. La Salle Dev., LLC, 2012 UT 89, ¶ 21, 293 P.3d 290. Given the en-
actment of the eminent domain statute, ―we are no longer tasked
with advancing public policy as we see it. We instead must im-
plement the particular balance of policies reflected in the terms of
[the] statute. Those terms are the law—even when we might find
the policies behind the statute should properly have dictated a
different rule.‖ Id. ¶ 22 (footnote omitted). Public policy concerns,


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             SCHROEDER INVESTMENTS, L.C. v. EDWARDS
                        Opinion of the Court

however grave, do not deputize this court to ignore the terms of a
statute and act legislatively. We are bound by the policy judg-
ments of the legislature—even if we fundamentally disagree with
them.
  ¶26 In any event, Schroeder’s policy arguments falter on their
own terms, as they fail to account for an important, countervailing
consideration. As Schroeder concedes, one of the primary policies
underlying the ―more necessary public use‖ provision is the
avoidance of serial takings. See, e.g., Greater Clark Cnty. Sch. Corp.
v. Pub. Serv. Co., Ind., Inc., 385 N.E.2d 952, 954 (Ind. Ct. App. 1979)
(―[A]bsent the prior public use rule, the land could be condemned
back and forth indefinitely.‖). Yet Schroeder’s compensation-
based version of the compatible use exception opens a wide door
to serial takings. Under Schroeder’s view, a subsequent taking
would always be sustained—so long as the condemner is willing
to pay compensation for necessary modifications to an existing
use.
  ¶27 The version of the compatible use exception supported by
our caselaw (allowing only the taking of unused property), on the
other hand, is subject to an inherent limitation on serial takings:
Once property is dedicated to one public use, it can be taken again
only if the subsequent public use is more necessary than the first.
Schroeder’s condemnation runs afoul of this principle, and we ac-
cordingly reject it.
                                  III
  ¶28 Absent any basis for a compatible use exception in this
case, UDOT was entitled to judgment as a matter of law. We ac-
cordingly affirm the district court’s decision granting summary
judgment for UDOT and against Schroeder.
                          ——————




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