*1 naturally into Mr. Iverson’s be read helped. would What was that suggestion Simpson’s deposition be obtained brought plant be- plaintiff to the Simpson had knew who building gain without to the one could access cause no key, key Simpson, he had the and that because activ- or lack of testify activities to' some of the able to might made might not have plaintiff. ities of in the amount some difference by judge from hiked $250 unrevealed reason for some procured transcript been after the $652.80 defendant. event intervenes where some in a like this

It is misleading irre- to be to his of counsel which causes flow from parable harm which when the full dramatically untimely mani- made the court’s utterance is death, how it Simpson’s I do not see to Mr. fest. But due can be reversal. remedied having himself, par- J., disqualified did not

HENRIOD, ticipate. et al. et al. v.

HJORTH WHITTENBURG (241 907.) No. 7711. Decided March *2 Highways, Changing grade highways S., See 39 J. sec. C. taking Jur., provisions. within eminent domain 18 Am. Eminent Domain, 209-219; secs. 156 A. L. B. 416. Vernon, Atty. Gibson, Clinton Gen., D. J. Lambert Deputy Atty. Gen., Bell, Atty. Gen., J. Richard Asst. appellants. George Eggertsen, Provo, S. re- & Ballif Ballif

spondents.

CROCKETT, Justice. here involved is: Where Utah State highway, improve acted faith to they personally liable for

adjacent property? We hold not. *3 changes improvements connection with and certain

in Highway grade U. S. the of road in the the front of plaintiffs’ just properties Mapleton, south of Utah substantially was contiguous raised level of the above the ground ranging from zero to four feet in one as much as area. any adjoining of Where the of landowners actually was widening improvement in pro- taken the gram, proceedings brought. condemnation of were None any plaintiffs of of in fact included widening or raising grade. used in highway Accordingly, they were con- not made defendants proceedings. recovery demnation Their claim for is based damages alleged to result from the raising highway detracting thus from the accessi- bility property. of their permitted

Plaintiffs maintain that re- unless covery against personally, Commissioners effectively any because, foreclosed from redress being proceedings they made to the condemnation therein, recompense could not obtain sue cannot sovereign immunity. State because its temporary restraining Plaintiffs first secured a proceeding the defendants from project with the road sought permanent to have it made at least until such time as their trial, were assessed. Prior to the court plaintiffs allowed the pleadings to amend their include a count for heard, When the matter was the evidence highway indicated that the work on the practically been completed, except for certain work, by injunction the time the issued. The court awarded judgment against

loss of plaintiffs’ value to property.

An incidental appellants’ is raised claim that the trial allowing court plaintiffs erred to amend complaint their damages, plaintiffs’ original to include since complaint equity injunction, for an and that change theory amendment was a in the cause of action permissible. which is not con sound; tention is not import the amendment did not into the case a new and action; different cause of and was permissible. therefore Indemnity Accident & Co. Hartford Clegg, Utah Rules of Civil 8(e) (2) Procedure. provides: Rule party “A set forth two or more statements of a claim or de- * * * * alternately many separate fense also claims regardless consistency defenses as he has and whether based * * *” legal equitable grounds on or on or on both. provides and Rule 15 part: * * * * * * “(a) party may A pleading amend his *4 * *” * freely given justice requires.

leave shall be when so correctly The trial court allowed the amendment. Failure to have done so in fully litigate that the controversy including between them the matter of damages would have been error. pass question:

We to the main Are the members of the Commission, State Road individually damages liable for 328 im- good of duties faith

arising performance of the out indi- law? As above upon and authorized posed them malice, bad imputation of cated, case no there is this part. negligence on their faith or members individual held that This court has to take proceeding may enjoined from be Road Commission providing for first property without private State just compensation to the owners. Dis Court, Fourth Judicial District Road Comm. v. that the effect trict, 502. To P. 2d 78 Salt Shaw v. may enjoined, also see an arm of State 50, 224 P. 2d 119 Lake Utah enjoined pro from whether the Commissioners damage will ceeding where with their duties here, present abutting property not owners is causing con for the case the reason that this trial, an ac sequential injury is, at the time and was being merely complished fact, threatened. than rather upon the extent considerable The trial court relied to a Court, Fourth State, by District Road Comm. v. State injunction District, involved an Judicial supra, against individual members of language to indicate some of the which seems therein individually commissioners be sued rule, for think, however, the true We dicta is not that this fact, appear. the dissent- reasons which will hereinafter ing opinion foreshadows of Mr. therein Chief Justice Wolfe suggests holding in this case. Darby, Gresty Kan.

In the case Supreme said Court 649, 651, Kansas officials, per- municipal general that state rule of law “It is * * * hy ex- imposed them statutes forming the duties necessary there- discretion ercising faith the injuries private personally in for, liable *” consequence acts. resulting of their official as a individuals

329 Bab approved rule of Wilbrecht is the case v. Thomp cock, 263, 916; Lutes v. 228 179 Minn. N. W. 135; in the son, and is announced 193 Okl. following language L. R. 1482: in 90 A. in an annotation “Highway performing for dam- acts are liable officers ministerial abutting ages to, trespass upon, owner where or of an * * * negligently act honestly “They not, however, personally are done liable acts constructing gives the exercise of discretion which the them in law maintaining highway, although trespass or in a a their acts result damage abutting to an owner.” Among upholding this rule cases cited therein Nelson v. Babcock, 248 N. following: 188 Minn. Pillings v. 1472; Pottawattamie 49, 90 L. R. W. A. 322; v. Hovey Mayo, 43 Me.

188 Iowa N. 176 W. Mass., and Callender Marsh, Pick., It must neces- authorities. We are in accord with these be they hold, public officials would sarily be as otherwise finding fearful to act at the risk of themselves in the done in faith performance for acts liable materially one from their The situation differs duties. sought restrained to be from public wherein a official is doing injury. purpose is There the an act which will cause injury possibility of such to the prevent and call the appropriate public a officials secure attention irreparable be determination as whether will compensation case, upon it. In proper proceedings, appropriate an determination can be injury made, compensable, public and if the then agency may respond responsible “taking distinguished property,”

In the of a case consequential purely injury property, from injury to know bound will But in occur. situations where abutting property, necessarily this is true. Many this. uses to exemplifies

The present put which the here involved are not *6 affected, adversely respects prop- and in fact in some the property any erties have been If benefited. all the to which consequential considered, harmful effects had to be joined the Commission, owners condemneees would impossible be difficult if the not Commission .it to safely know whom could omit from condemnation proceedings. way The safe in which the Commissioners operate abutting join would be to ever owner on or highway project near the to avoid suits personal liability them. The im- to practicability obligation imposing upon public of such an the body in public the construction and of maintenance our highways is obvious.

We hold that where to arises of out the faithful and honest performance imposed by of upon duties law members of the Road required such officials are not to re spond personally. argument plaintiffs’ against injustice of counsel the

to sovereign immunity his clients eloquent per- is remedy suasive. The not imposing is to be found in arbitrary unreasonable and public burden of- phase ficials. This of our law is well established and of long standing. If it changed, is to be that must come through sovereign commonwealth, of this power people, speaking through legislature. holding

Our plaintiffs herein does leave the remedy. without a Title 26 U. C. A. sets forth Examiners. duties the Board of Section 26- thereof, 0-11 provides: “Any person having against state, a claim the settlement of provided by law,

which is present not otherwise must the same ** examiners, board of

BB1 26-0-13: provided further Section and it is proceed designated examine must the time “The board at against support adjust claims, of or hear evidence such all legislature report facts and recommenda- them, shall *” concerning proper. them as it think tions Campbell Comm., Bldg. v. State Co. 95 Utah See Wilkinson P. 626. court determines

Defendants also contend that if this wrongly sued, entitled have been doing damages in cost sum of as the reasonable $600 stopped because of this which was nothing in plaintiffs. suit instituted There *7 to defendant will record show that personally, required pay to cost anyway, nor it done that would not have had to be they compensated for this therefore are not entitled to be work. appellants. reversed. to Costs

WADE, HENRIOD, JJ., concur. McDONOUGH WOLFE, (concurring). Chief Justice by my opinion I concur. In case overrules this Court, Dis State Road District Fourth Judicial Comm. v. trict, spirit at least its reasoning. prayer Whilst that case did not involve a money alleged consequential was but action restrain the State Road proceeded theory on the could that Road Commission be restrained commissioners they if restrained threatened owner taking, consequentially and not a direct unless first paid consequential damages for the cause. long carefully dissent, registered op- I In a considered my position theory to this it view because that neither the Road Commission nor individual commissioners inflicting consequential damages, could be restrained from taking but from a direct without condemnation and theory this on trespassing that would then be acting legislative authority. as individuals and without opnion, compensation by legislature the matter of approval on of a claim to the Board of Examiners as sub- process stantive due all its ramifications was also dis- length. expenditure cussed at After the of the labor which put I opinion, anything on that I no see need to do but else my My refer opinion the reader to it for views. ais complete position respondents answer in this case. al.

HELMAN PATERSON et (241 910.) Decided March 1952. No.