*1 controversy to a final settle- bring the ment.2 trial order of the court is reversed.
No costs awarded. ELLETT,
TUCKETT, HENRIOD and
CROCKETT, JJ., concur.
Crockett, J., concurring opinion, filed disagreed part. P.2d 144 Henriod, J., concurring opinion, filed INVESTMENT ANDERSON CORPORA- Ellett, J., in which concurred. Plaintiff TION, Appellant, STATE of Utah et Defendants al., and Respondents.
No. 12832.
Supreme Court Utah.
Nov.
1972.
Niro,
2d
De
28 Utah
(for Const.), for defendants-re- spondents.
ELLETT, Justice: appeals ruling from a *2 trial dismissing complaint court its for fail- ure to state a claim. plaintiff
The owns some on land the southeast corner of the intersection of Temple North and Third West Streets in City. Lake Salt Third West Street runs north and south on the west side and Temple North runs east and Street west on the property. north side of the Anderson many years For past Temple North Street has crossed some railroad tracks means commencing of a viaduct on the west side in question. intersection The State Road Commission decided to replace enlarge the viaduct and in con- planned nection therewith to make the approach eastern thereof commence on. Temple North east of intersection. The entirely new viaduct was to be within Street, Temple the confines of North so taking there was no of the Anderson fact, land. eastbound traffic ramp leave the viaduct means of a reach street level at the intersection in McKay, Burton, Thurman, McMurray & question proceed and then on a section of Burton, McMurray, Wilford M. Steven R. feet street 15 wide between the south City, plaintiff-appellant. Lake' Salt edge of the new viaduct and the curb on Romney, Gen., Atty. Vernon B. Mark south side of the A. street. This lane was Madsen, Coleman, Attys. Donald S. Asst. reserved for eastbound traffic and afford- Gen., Pratt, City, appellant’s property. Elliott Lee Lake ed access to A Salt lane.
3«1
entering
owners,
for westbound traffic not
the via-
similarly
Anderson,
situated
to
brought
duct
side
was also reserved on the north
the State Road Com-
Temple
compel
Street.
North
mission to
it to condemn their ease-
air,
light,
ments of
and view. The State
height
The
was to have a
viaduct
8i/£
Road
applied
Commission
to this court for
feet at
eastern line and
at the
feet
231/3
prohibition
a writ of
prevent
trial
property.
line of the
western
court
from proceeding with the case.
damage
appellant
seems
be There
language
in that case which at
not be
that its
would
westbound customers
reading
first
would
support
seem to
able to cut across the lanes for eastbound
However,
appellant.
claim of
analysis
an
premises
be
traffic to enter
but would
of the decision
language
shows that the
required
make
turn
an “U”
under the
only.
dicta
There the suit below was to
viaduct
near
intersection
order to
compel the commission to act. This court
entry.
make that
ruled that
subject
the commission was not
to the
sovereign
suit because
immunity
However,
ruling
because of the
of this
inasmuch
as was an arm of the State.
Springville Banking
court
in the case of
That was all
there was
the decision.
holding
Co. v. Burton1
that such
However,
this court
a three to
deci-
two
recovered,
appellant
could not be
*3
stop
did
sion
not
there.
It said
if the
claims that
the center of
because
the street
against
suit had been
the individual mem-
the
of
property
to
north
its
has been ele-
commission,
bers of the
it
have been
by
vated
the new viaduct there has been a
simply dicta,
maintained. This was
the
as
taking
property,
of its
wit: a diminution
to
individual members
the
of
commission
light, air, view,
of its
of
easements
and ac-
parties
were
the suit.
By
sought
cess.
this suit it
enjoin
the
Commission,
State Road
the individual
In the instant suit
did
thereof,
members
and the
from
contractor
make the individual
of
com
members
the
proceeding
any
with
on
work
the viaduct
parties
However, they
mission
defendant.
paid
until it
appropriate money
had been
are not bound
the dicta in the State v.
damages.
Fourth
District Court case. These
Judicial
Anderson bases
language
performance
its claim on
members
of their duties
found in the case of State v. Fourth
the
immunity
have
same
as does
com
the
Judi-
cial
they
District Court.2 There some land mission which
constitute.3
(1969).
dissenting
10
2d
349
Utah
P.2d 157
3.See
the
of Justice
in
Wolfe
the Fourth Judicial District
2. 94 Utah
ment reversing to the be liable for their torts committed not judgment, this court said: course their official duties to Respondent’s counsel do not any person, as same extent will other in terms contend that an action here per these commissioners were maintained, the state can be but what formance of their duties in the exercise of they contend is this action is not police power pro of the State to better the state. We cannot conceive orderly upon vide for the flow of traffic seriously counsel how can make such a highways They of this thus State. are claim, very judgment they since the seek given immunity the same from as uphold requires paid be out of given to the State of Utah or to its com belonging exclusively the funds to the missions. state. It is idle to contend that an ac-
tion is not The dicta in the state when it and State v. Fourth Judicial case, responsible, supra, no one is District law, else held and Court was not the Wilkinson, 314, 316, 367, State, al., 483, 4. 21 Utah 2d 445 P.2d 5. 368 v. et 42 Utah (1968). 492, 626, 134 P. 630
383 law, (footnote has been the law Fourth 2 and never District Court case of not is opinion). main this of State. appellant also claims that the case It seems to me that inasmuch as those Rapid respected Dooly judges Lake Transit
of Block Salt are not here defend Company authority themselves, for its claim to re we should be restrained and granted City an lief. There Lake had Salt fault, circumspect criticizing finding in a easement to the defendant construct only justified and should do so both and railway plain in in the street front of necessary, of neither which exists here. property. The use
tiff’s business was for opinion says Hoyt’s Judge The main that private corporation engaged public a decision stated: gain. services but for financial It thus that if the suit been had differed from the instant case. .the the individual members of. Commission, it could have been main- The trial court was correct tained. dismissing appellant’s complaint failing for judgment
to state a claim.7 The is af my To mind that connotes that the cause firmed. of action would succeeded have
individual road commissioners. CALLISTER, J., TUCKETT, J., C. Judge Hoyt’s It is submitted deci- concur. sion does state the action could be CROCKETT, is, (concurring, “maintained,” that it could succeed Justice disagreeing part). against the individual road commissioners. correctly
I think this case opinion points decided. correctly Our main herein impresses But join I do not in what holding Judge me as Hoyt’s out that the actual opinion sharp too condemnation decision was that the State Road Commis- Judge Hoyt, which was subject concurred sion was not because sov- ereign immunity. holding Folland Moffat That was all the Justices entering upon 6. 9 Utah P. 229. the land demned” before improvement. begin The statute if an Even action would lie require deposit land does not unless appellant’s for interference with ease- provision is to be taken. The in Art. enjoin ments, a suit the construction merely I, of our Constitution § 78-34-9, lie. would not Section U.O.A. provides private property shall not (1971 Supplement) pro- Pocket now damaged public he taken or use with- condemning agency vides that shall just compensation. out quire It does not re- deposit appraised at least of its val- 75% compensation paid in advance. to be “property sought ue of the to be con- *5 for, ing made in that case if properly and undoubt- “that the suit had stand
case against knowledgeable judges been the individual members of the edly was all those Commission, However, it could have been main- for. as intended to stand tained.” done, perhaps infrequently out of some compassion feeling concern for or stated, For the reasons above notwith- apparent plight plaintiffs, their of the and standing desirability the admitted of brevi- they feeling being wronged were ty decisions, minimizing and conflict in our arbitrary high-handed and action impelled I have felt to make these observa- ruining prop- road commissioners in their my my unwilling- as to tions reasons for erty, the court made its decision correct join Judge Hoyt's ness to in the censure of emphasized and added the comment: opinion. prohibits pro- In far as so the writ HENRIOD,
ceedings . . . the State Justice: Commission, Road per- the same is made doing I concur and so do not share should, This, however, manent. not be impression Crockett that Mr. Justice construed to proceedings forbid opinion sharply the main too condemned individual members of the State Road opinion Judge Hoyt previous a Commission in plaintiffs case the in the case. I think it is a matter of semantics injunction suit ask leave to amend their designed point quoted out that the state- complaint so as to make the individual opinion penned by ment Mr. Justice members of the State Road Commission Hoyt in the was nature of dictum and un- parties [Emphasis defendant. added.] necessary establishing of that the law case, particular my judgment conclusion with which I nothing this meant more —-a agree. highest regard I have the and nor open less than that left the door was Judge integrity Hoyt, affection for whose plaintiffs so should desire to intellect, my opinion, and amend, are of the thought they and were able to state highest, quite unimpeachable, I prove the in- cause action —and nothing think there is Commission, vidual members of the Road conviction, any minimizes such as- casts possibility precluded. should not be persions qualities. on those proposition firmly That I believe is sound enough, properly susceptible of and is not ELLETT, J., meaning given concurs in the views ex- the court’s decision HENRIOD, case, pressed
in this that on the of the show- basis J.