SPRINGVILLE BANKING CO. v. BURTON

HENRIOD, Justice.

Appeal from a dismissal of plaintiff's mandamus action which sought to require members of the State Road Commission to initiate eminent domain proceedings to assess damages allegedly caused by impairment of ingress to and egress from plaintiff's property. Affirmed. Costs to defendants.

Plaintiff owns a lot and building on the East side of Main Street at Seventh South in Springville, Utah. Main Street is a segment of a transcontinental highway. It runs North-South. The Commission placed a concrete island in the middle of Main Street, eliminating U-turns and left turns, and denying access of southbound Main Street traffic to plaintiff's property. The official project map indicates, however, that a new diversion highway permits southbound traffic seeking plaintiff's property to travel about 1400-1500 feet further than it was wont to do before.

Plaintiff seeks no removal of the island, but damages for interference with access to the property. It claims "damage" for which it urges compensation should be paid under Constitutional provisions. This amounts to an asserted constitutional right to be damaged.

Plaintiff concedes that in cases like this the State cannot be sued for lack of consent; that an action will not lie against the Road Commission; and that damages are not assessable against the Commission members individually. It is further conceded that the Commission acted reasonably, plaintiff alleging in its complaint that:

"The impeding of plaintiff's ingress and egress was determined by the defendants to be necessary for the proper and skillful construction of a highway for the use of the public, and the highway was skillfully and properly constructed."

This concession that there was no unreasonable exercise of the police power provokes two questions: 1) Can plaintiff, employing the extraordinary writ of mandamus, compel the state to pay damages, when, because of sovereign immunity, it could not have done so in a direct suit against the State or the Road Commission? and 2) Was the damage here compensable in any event?

As to 1): We believe and hold that the procedure chosen by plaintiff was an effort indirectly to do that which repeatedly we have held could not be done directly, which is dispositive of this case on that ground.

As to 2): In this area of the freeway, citizens must yield to the common weal, albeit injury to their property may result. We espouse the notion that if the sovereign exercises its police power reasonably and for the good of all the people, when constructing highways, consequential damages such as those alleged here, are not compensable. On the other hand, if public officials act arbitrarily and unreasonably, causing, for example, total destruction of the means to get in and out of one's property, without any reasonable justification for doing so in the public interest, in a manner that imposes a special burden on one not shared by the public generally, principles of equity no doubt could be invoked to prevent threatened action of such character or to remove any instrumentality born of such conduct. Plaintiff did not allege or assert anything akin thereto.

The complaint makes it obvious no such case exists here. Access has not been denied. Interfered with, it is true, but in our opinion to no unreasonable extent. Southbound travelers seeking plaintiff's property have to travel but a quarter mile further to reach it. The island concededly was necessary and desirable for safety reasons and to effect traffic control. This case more nearly is akin to Robinett v. Price, where we held a much more circuitous route gave rise to no claim for damages where one end of a road was closed.

If every abutter on a highway or street where proper authority reasonably has eliminated left or U-turns, could obtain damages incident to such eventuality, the result is obvious: Highways would remain unmarked because of the prohibitive cost involved in payment of damages to owners on both sides, or else they would be by-passed entirely as was the case in State by State Road Commission v. Rozzelle, which accomplishment we approved. Highways would become increasingly more dangerous, what with the rapidly increased traffic that has evolved in the past years and which clearly will increase further. Thousands of miles of highway would be left with no traffic control. No city could afford the luxury of a one way street lest it was of that type in the inception. Exigencies of the times require a practical, sensible approach to the limited-access highway problem, with the general public good being the primary consideration in determining each case as it arises, every case being different.

We believe, conclude and hold that the plaintiff here had no cause of action by way of mandamus, and that any damage provable here must yield without compensation in view of the obvious and admitted necessity for dividing the subject highway in this case.

CROCKETT, C.J., and CALLISTER, J., concur.

McDONOUGH, J., concurs in the result.

WADE, Justice (concurring with the result).

I concur with the result reached in the prevailing opinion on the ground that plaintiff has failed to show any compensable damage to their property. I do not agree that if such damage were shown sovereign immunity is applicable to this case.

I disagree with appellant that if compensable damage were shown injunctive relief should be granted to force the state to bring a condemnation suit for I think the state consented to a direct suit by the appellant, if such showing were made, by Section 22 of Article I of our Constitution, which provides that "(P)rivate property shall not be taken or damaged for public use without just compensation." To hold otherwise in some cases allows the state to clearly violate the above constitutional provision; in others it causes a multiplicity of actions and creates no end of doubt and uncertainty. This conclusion is supported by the great weight of authority.

That section makes no distinction between property taken and property not taken but only damaged, nor does it prohibit either taking or damaging private property for public use, but it requires just compensation for either the taking or damaging of private property for public use. It is applicable to every case where the law of eminent domain could be exercised but is not limited to such cases. It requires just compensation where private property is taken or damaged to an actionable extent for public use. It is not limited to private persons, firms or corporations but applies to the State, the Legislature, and all Boards, Commissions, Governmental agencies and subdivisions thereof, and is wholly inconsistent with the doctrine of sovereign immunity from a suit to recover such just compensation. In discussing this problem it has been well said:

"* * * `Immunity from suit' cannot avail in this instance, and if no statute exists, liability still exists, because as to this provision the Constitutions are self-executing.

"To hold otherwise would be to say that the Constitution itself gives a right which the Legislature may deny by failing or refusing to provide a remedy. Such a construction would indeed make the constitutional provision a hollow mockery instead of a safeguard for the rights of citizens.

"No court has ever applied the doctrine of immunity from suit to cases like the one at bar, nor can they, for to do so would absolutely annul the provision." (Emphasis ours.)

This conclusion is absolutely required by that section of our Constitution. It is clear, as we held in State by State Road Commission v. District Court, Fourth Judicial Dist., that the mere right of a party whose property has been taken to present his claim to the Board of Examiners is not due process of law.

In the Fourth District Court case, Judge Hoyt, in the prevailing opinion, said the State cannot be sued "without its consent and that consent is not ordinarily implied," but that there is at least one case which holds such consent is implied from a constitutional provision similar to Section 22, supra, and Mr. Justice Wolfe in dissenting in that case indicated that there was only one case which has so held. The impression created by these statements that few cases have so held is erroneous for practically all of the cases dealing with this problem hold that by such provision the State consents to being sued for such compensation without any implementing statute.

In Johnson v. City of Parkersburg, supra, 16 W. Va. 402, 422-423, the Supreme Court of West Virginia in holding that a constitutional provision similar to our Section 22, supra, is as effectual consent to being sued as an express statutory enactment would be, said:

"I have nowhere seen it contended that a clause of a Constitution, which declares that `private property shall not be taken for public use without just compensation' requires legislation to put it in force. It has always been regarded as self executing. It is a limitation, not only upon the rights of individuals and corporations, but also upon the legislatures of the states."

Chick Springs Water Co. v. State Highway Department, supra, 157 S.E. 842, 847, 848, is a leading case on this subject and the one quoted from above. It also holds that the State by such constitutional provision without implementing statute has consented to being sued. There the relocation of a state highway caused periodic flooding of plaintiff's land. In reversing the trial court's dismissal of the action on account of sovereign immunity, the Supreme Court of South Carolina said:

"The authorities hold that the constitutional provision is self-executing.

"`It is within the power of those who adopt a constitution to make some of its provisions self executing, with the object of putting it beyond the power of the Legislature to render such provision nugatory by refusing to pass laws to carry them into effect; and where the matter with which a given Section of the Constitution is divisible, one clause thereof may be self-executing and another clause or clauses may not be self-executing. Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect and no ancillary legislation is necessary to the enjoyment of a right given and the enforcement of a duty imposed.' 12 C.J. 729.

* * * * * *

"From the above authorities it is indisputable that the constitutional provision quoted is self-executing, and, the Legislature having enacted no statute providing for the compensation guaranteed by the Constitution applicable to the facts of this case, an action at law will lie to recover such compensation."

The constitutional provision in this case like the United States Constitution only required just compensation for the taking without mentioning damaging of private property for public use.

In Great Northern R. Co. v. State, 102 Wn. 348, 173 P. 40, 42, L.R.A. 1918E, 987, the Supreme Court of the State of Washington, in holding that a railroad company could recover in a direct suit against the State damages caused by the State in constructing a highway along a mountainside above the railroad tracks in dumping materials onto the tracks by blasting out a shelf on the mountainside for the highway above, said:

"In our opinion, the theory that property rights are ever to be sacrificed to public convenience or necessity without just compensation is fraught with danger, and should find no lodgment in American jurisprudence. If the acts which cause the injury were done under and in consequence of the direction of the state, then the state is to be regarded as the superior, and responsible as such, although it does the work by contract and by the direction of its duly authorized officers. The plaintiff's complaint states a cause of action under article 1, § 16, of our Constitution, and the state's demurrer was properly overruled. * * *"

Likewise, in Rose v. State, 19 Cal.2d 713, 123 P.2d 505, 510, California has held that the State is liable in a direct action to recover damages to abutting landowners on a street for constructing a subway therein, saying:

"Since article I, section 14, therefore, is a restriction placed by the Constitution upon the State itself, and upon all of its agencies who derive from it their power of eminent domain, it cannot be said that the mere failure of the legislature to enact a statue allowing suit to be brought against the state entitled the state to disregard and violate that limitation. The logical inference is that said constitutional provision is intended to be self-enforcing."

In Renninger v. State, 70 Idaho 170, 213 P.2d 911, 916, the Idaho Supreme Court, in an action to recover compensation for flooding plaintiff's land caused by the construction of a bridge, in holding that the constitutional provision that private property shall not be taken until just compensation to be ascertained in a manner to be prescribed by law, has been paid is self-executing said:

"* * * This provision of the Constitution, therefore, waives the immunity of the State from suit, and if the State takes the property without condemning, the landowner, to give full force and effect to the provision of the Constitution as self-executing, must be entitled to sue therefor and such are the universal holdings of the courts * * * [Cit.] and State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868, clearly and tersely affirms appellants' position thus:

"`* * * To deprive the citizen of his property by other than legal processes and depend on escape from the consequences under cover of the plea of nonsuability of the State is too anomalous and out of step with the spirit and letter of the law to claim protection under the Constitution.' [Cit.] * * *"

In Tomasek v. State, 196 Or. 120, 248 P.2d 703, 715, the Oregon Supreme Court, in an action to recover just compensation from the State for the construction of a bridge which caused the erosion of plaintiff's land, held that a constitutional provision that private property shall not be taken without just compensation constituted a waiver of immunity by the State from such action, saying:

"The constitution having created the absolute right in the owner of property as against the state, such provision carried with it a waiver of immunity on the part of the state to actions prosecuted for damages for its violation."

And in County of Mohave v. Chamberlin, 78 Ariz. 422, 281 P.2d 128, 133, the Supreme Court of Arizona, in an inverse eminent domain action against the county to recover compensation for damaging plaintiff's land by flowing sewage onto it, reversed a previous dictum statement and held that a constitutional provision similar to our section 22, supra, is self-executing, saying:

"As a predicate for the dictum statement set forth, supra, * * * is not self-executing but requires legislative enactment to implement it. The overwhelming majority of courts to which such a question has been presented do not agree with this holding. [Cit.] * * * As the Supreme Court of California so well stated in the Rose case [ 105 P.2d 310]:

"`* * * The legislature by statutory enactment may not abrogate or deny a right granted by the Constitution. [Cit.] And it follows as a logical conclusion that a right constitutionally granted cannot be taken away by the failure of the legislature to act.

"`As stated in the case of State v. Fletcher, 168 Okla. 538, 34 P.2d 595, the constitutional provisions in question * * * were specifically enacted to protect and preserve the individual rights of the subjects of the sovereign. Certainly, in the absence of provision in the section itself, the framers of the Constitution did not intend to grant a right which the legislature by its refusal or neglect to enact proper remedial machinery therefor might take away or deny.'"

Almost every court which has directly decided this question has held that by such constitutional provision the State waives its sovereign immunity from such suit and consents to being sued for such just compensation. Although in the Fourth District Court case, supra, the prevailing opinion intimates and the dissenting opinion expressly says that "Consent of the State to be sued cannot be implied," neither that case nor the Wilkinson v. State case, nor the cases in the annotation in 42 A.L.R. 1464 hold that in a case of this kind the State has not consented to being sued. The Wilkinson case and the cases in the annotation are dealing with sovereign immunity generally and not with this specific problem. The cases which expressly hold that under the conditions here presented the State has not consented to be sued are conspicuous for their scarcity. One is Hunt-Forbes Const. Co. v. Robinson, cited by Mr. Justice Wolfe to that effect, and Norwood v. Kentucky Confederate Home. These cases lost most of their force as authority for that proposition when a later case by the same court, Kentucky State Park Comm. v. Wilder, distinguished them from the case at hand, holding that by a constitutional provision similar to our section 22, supra, the State consented that the State Park Commission, which is similar to our State Road Commission, could be sued to recover just compensation for lands taken for public use even though under those cases the Commonwealth itself could not.

In the Fourth District Court case, supra, we partially recognized that the State has consented to this kind of a suit. There we approved the enjoining of the contractor and the individual members of the State Road Commission from proceeding with the construction of a viaduct on a public highway in order to coerce the State into paying just compensation to the adjoining landowners for the damages caused to their property by such construction, but refused to enjoin the State Road Commission as such because injunctive relief afforded the adjoining landowners an adequate remedy. In that case, 94 Utah 384, 397, 78 P.2d 502, 508, we said:

"We think it clear that the framers of the Constitution did not intend to give the rights granted by section 22, and then leave the citizen powerless to enforce such rights * * *."

Continuing on this question at pages 398-399 of the Utah Reporter and 508-509 of the Pacific Reporter, we said:

"The State Road Commission is, * * * an agency of the State, and suit against it is suit against the State. Suit against the State cannot be maintained without its consent, and that consent is not ordinarily implied. It may be argued that by adopting the provisions of section 22 of article 1 of the Constitution, the State has impliedly granted consent to be sued in the case of a taking or damaging of private property for state use without compensation. Such a rule has been declared in at least one jurisdiction, [cit] * * *.

* * * * * *

"We think if a case arises where there is no other method of enforcing a constitutional right except by suit against the State, then it must be considered that the State has given its consent to be sued in such a case. In this case, however, we hold that the Road Commissioners individually may be enjoined from proceeding in a manner forbidden by the Constitution — and that it is therefore unnecessary to permit suit against the State * * *."

In two previous cases we enjoined a railroad company from operating its line without arranging to pay just compensation for the damages caused thereby to adjoining lands under circumstances somewhat similar to those in the Fourth District Court case, although a railroad never has sovereign immunity from a direct suit for such damages. So, under those decisions it was unnecessary that the state be immune from a direct suit in order to justify injunctive relief in the Fourth District Court case. There is much force to Mr. Justice Wolfe's contention in his dissenting opinion that the effect of that decision was a denial of the state's right of sovereign immunity from that suit. For, although the prevailing opinion pretended to allow the injunction only against the contractor and the individual commissioners, the only purpose or effect thereof was to coerce the state to settle by suit or otherwise the adjoining landowners' claims for damages or to abandon the contemplated improvement. The individual commissioners, as such, never proposed, threatened or intended to do anything contrary to the injunction granted. Everything which they proposed to do in connection with the property involved in that action was only as officers or agents of the State and not as individuals and the State can act only through its officers and agents. To claim, under such circumstances, that only the individual commissioners were being enjoined but the state was not is to substitute pretense and subterfuge for reality.

This contention is strengthened by our holding in the Hjorth v. Whittenburg case, where the adjoining landowners recovered a personal judgment against the individual commissioners for the damages to their land caused by a change in the grade of the highway. On appeal we reversed that judgment holding that the individual commissioners were not liable for such damages personally. Thus, we refused to allow a personal judgment against the commissioners as individuals which would affect their own personal rights and liabilities. Both the Hjorth case and the Fourth Judicial District Court case indicated that the doctrine of sovereign immunity prevented a direct suit against the state for such damages, but that question was not before the court in either case, and its decision was unnecessary to support either judgment. In the Hjorth case we decided only the liability of the individual commissioners, and in the Fourth District Court no question of a direct suit for damages against the state was involved, and the real effect of that decision was to allow the state to be sued and enjoined from making the improvement without compensation in that action.

The holding in the Fourth District Court case that the state has consented to being sued directly for just compensation only when injunctive relief is not available to enforce this constitutional provision is unsound. The state is immune from suit without its consent regardless of the hardship such immunity may cause. If the state has impliedly consented to being sued to prevent the taking or damaging of private property for public use without just compensation, why should we imply such consent to a direct suit for the recovery of such compensation only when no extraordinary remedy which will cause a multiplicity of actions is available? Conceding that the state might so limit such consent, there is nothing in this case which indicates that such was the intention. Injunctive relief is usually granted only when there is no other plain, speedy and adequate remedy, but under this holding all that is reversed, and we allow a direct suit only when injunctive relief is unavailable.

Most jurisdictions have eminent domain statutes authorizing the condemnation of and payment for private property taken for public use. The Federal Constitution, like most early state constitutions, prohibits the taking, but not the damaging of private property for public use without just compensation. Under such early provisions there was little occasion for the actual taking of private property for public use without first agreeing on the amount of just compensation to be paid or having such amount fixed in a condemnation procedure. As the country developed and the amount of consequential damages to private property for public use became more pronounced, many states enacted constitutional provisions similar to our section 22, which prohibits both the taking and the damaging of private property for public use without just compensation. Probably the first state to adopt such a provision was Illinois in 1870, which has been followed by many other states, including our own. Under the early provisions which require an actual taking, there was little occasion to sue the state to recover for property taken. However, under the new provisions, where consequential damages could be inflicted without an actual taking of or trespassing on private property, the occasion for suit to recover such damages became much more frequent, and the question of whether the state by adopting such constitutional provision had impliedly consented to be sued for the recovery of just compensation was much more often presented to the courts.

Many jurisdictions have general statutes authorizing suits against the state or some boards, commission or other governmental agencies or subdivisions. For instance, there is a federal statute which provides:

"Section 41. The district courts shall have original jurisdiction as follows:

* * * * * *

"Twentieth. Concurrent with the Court of Claims, of all claims not exceeding $10,000 founded upon the Constitution of the United States * * *."

In Jacobs v. United States, where intermittent overflowing of land resulting from the construction of a dam by the United States was held in a direct suit against the United States to be a partial taking of the adjoining property, which required just compensation, Chief Justice Hughes in so holding for the court, said:

"* * * The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the amendment. The suits were thus founded upon the Constitution of the United States. 28 U.S.C. § 41(20), 28 U.S.C.A. § 41(20)."

A somewhat similar situation exists with respect to suits against cities in this state. By section 10-7-1, U.C.A. 1953, cities and towns "may sue and be sued." Section 282, R.S.U. 1898, in effect provides that the owner of real property abutting a street which is damaged by a change in the grade in such street after valuable improvements have been made on such property, may recover such damage in a civil action brought for such purpose. We have repeatedly held that the owner of such damaged property may recover such damages in a direct suit for that purpose against the city. However, in Webber v. Salt Lake City, where the one year statute of limitations on liability created by statute had expired on such a claim for damages against the city before the suit was commenced, we held, "that this constitutional provision [section 22] is self-executing, and to make it available required no legislative aid. The right to recover consequential damages for injury to private property by reason of making public improvements therefore does not rest upon section 282, supra, but is based upon the provision quoted from section 22 of article 1 of our Constitution." No reliance in that case is placed on section 10-7-1, U.C.A. 1953, so this seems to be a direct holding that by the adoption of section 22, supra, the state has impliedly consented that the city may be sued on a claim of this kind.

From the foregoing, the conclusion is inescapable that by the above constitutional provision the state has consented to be sued to recover just compensation for the taking or damaging of private property for public use.

Such a holding would not abrogate the doctrine of sovereign immunity in a proper case but would merely hold that by section 22, supra, of our Constitution the state has consented to being sued to recover just compensation for taking or damaging of private property for public use. Such compensation must result from or grow out of a public use of property, either the property taken or other property used for a public purpose, and such compensation can only be recovered for "actionable injury," and must not be too remote or merely speculative. Thus the state is not required to compensate for damages from re-routing a highway and thereby diverting customers and business from a business establishment as we held in State by State Road Commission v. Rozzelle, supra, nor for loss of future profits anticipated under a contract for the future development of the property as we held in State v. Tedesco, supra. Such public use must be one which the state is entitled to make, and it must be intentionally made by the duly constituted public officers and not be merely the result of negligent or other wrongful acts which create ordinary tort liability. I think the foregoing rules preclude appellant's recovery.

The implied consent of the state to being sued to recover just compensation for taking or damaging private property for public use contemplates the most direct and efficient suit possible in the interest of a just, speedy and inexpensive determination of that question. A requirement that the appellant seek injunctive relief to coerce the state into instituting condemnation proceedings would leave them, when such suit for injunction was over, exactly where they would be if they were allowed to sue directly for such just compensation, for in either case they must plead and prove their claim, and the granting of injunctive relief will not bring them any nearer a determination of their rights to just compensation. If injunctive relief is their only remedy, it requires two suits to accomplish what a direct action to recover just compensation, if allowed, would accomplish. This causes additional expense to both the state and the claimants by requiring the prosecution or defense of an additional suit; it takes up the time of the courts and causes additional delay and time for litigation. Is it reasonable to hold that the state, by implication, has consented to a direct suit to recover just compensation only where great hardship cannot be avoided by injunctive relief? In my opinion such a concept is wholly unreasonable and as previously pointed out, is contrary to the great weight of authority.

The only cases where the state will benefit from a holding that only in cases where injunctive relief will not prevent great hardship will consent to a direct suit be implied are cases where long drawn out litigation or the prospect thereof will cause the claimant to abandon his claim, and cases like the Hjorth case, where injunctive relief is not asked for until it is too late. In both of such cases the benefit to the state results from a denial to the claimant of the just compensation guaranteed to him by the Constitution. Certainly, courts should not lend support to such a situation.

What would constitute sufficient hardship if such rule were applied so that consent of the state to be sued for just compensation would be implied would be left entirely uncertain. A multiplicity of suits and uncertainty of the correct remedy often causes a denial of justice. Litigation at best is expensive and time consuming even to the winning party, and a procedure which requires a multiplicity of actions and creates doubt and uncertainty would be intolerable and should, if possible, be avoided. All of this could be avoided by a simple holding that the state has consented to be sued for just compensation whenever a taking or actionable damages is shown. I think such is the correct rule to be applied to this case.