*1 Hurst, V. HURST and Louise Thomas G. wife, Appellants, his of The State of DEPARTMENT
HIGHWAY Burgraff Utah, V. Construc- and Robert Company, Respond- Defendants ents. Provo, Lewis, Thorn, Jerry & G.
Howard
appellants.
for
Gen.,
Kesler, Atty.
Joseph S.
A. Pratt
City,
Knowlton,
Bayle, Salt Lake
F. Robert
respondents.
noisy
produces
equipment
CROCKETT,
Justice.
great deal
dust and smoke which
De-
plaintiffs Hurst sued the Utah
The
property, hazarding their health
onto their
Con-
Burgraff
partment
Highways and
interfering
of their
injunctive
Company, asking
struction
*2
home,
aver,
causes the
which
the
damages because of
relief and for
nuisance.
sought
constitutes a
and
plaintiffs’
gravel pit
operation
near
aof
Orem,
in
Utah.
home
sovereign immunity as an
Plaintiffs assail
be aban
defense
outmoded
which
granted
motion
court
the
The district
opinion
purpose
our
in this
It is not
doned.
Highways to
Department of
of the
given
justify
sometimes
the various bases
of
ground
the
complaint1
to it on
the
king (sovereign)
as its
that the
foundation:
appeal.
sovereign immunity.2 Plaintiffs
as the
or,
inasmuch
wrong;
that
can do no
dismissal,
we
In view
courts, it is
sovereign is the creator
accept the
set forth
obliged to
facts
has
the court
consider that
anomalous
plaintiffs’
complaint, the essentials of
jurisdiction
actions.3
and control over its
plaintiffs’
1959, gravel pit near
Since
a
are:
validity
below, the
For
to be stated
reasons
has
belonging
home in Orem
to the State
of
invalidity
is not now
ideas
or
of those
over
operation. During
in
that time
been
However, we
any great importance to us.
100,000 yards
aggregate material has
of
the
point out that
appropriate to
think it
do
building
purpose of
for the
removed
con
purpose in
practical
serves
doctrine
by
highways.
done
The actual removal is
public affairs.
operations of
nection with the
building roads
contractors
bids for
whose
relieving
govern
the
It
the effect of
has
privi
bridges make
allowance
expense
claims or
of
ment of the trouble
lege
materials from this
using
of
the State’s
misdoings
its serv
of
from
lawsuits
Burgraff,
pit.
defendant,
iswho
The other
ants;4
judgments
resulting
appeal,
joined
in
involved
this
particularly
burdensome
which could
using
contractor
the
because he was such a
upon
juries may
the state
because
look
pit
brought.
at
time this action was
the
pocket”
proverbial “deep
treasury as the
the
Where
resources.
inexhaustible
allege
operation
the
of
rendering services vital
necessary
is
gravel
plant
processing
Driggs
(6), 12(b)
v. Utah
U.R.C.P.,
12(b)
authorities cited
Rules
Board,
Highways
Department
Retirement
Teachers
of
is
2. That
tbe
protected
sover-
of the State
opinion
g.,
written
eign’ immunity,
is
the week this
4. E.
see State
hearings on
set
of Examiners
the Board
v. Fourth District
aggregating
$330,000.
over
claims
negligence;
for mere
and that
case
welfare,
comes
on
relied
of
of Shaw Salt Lake
rights or interests
conflict
pertinent
regard.7
plaintiffs,
individuals,
is
that
that
it
often essential
We,
there is
willingly agree be subordinated
the necessities
latter
nui-
negligence 'and
or
a difference between
as a
Whatever its basis
whole.
inability to
be,
may
practical
But we
our
its merit
sance.
confess
any logical basis
sovereign immunity
carrying on
see in that distinction
value of
a “nuisance”
governmental
proved
holding
that suit for
functions has
state,
that,
public policy,
would be maintainable
as matter of
“negligence”
not.
approval
a suit for
would
of most while
continued to receive
authority
except
jurisdictions
country,
pointed
As
the eminent
in this
out
torts,
Prosser,
making
changed by
on
Dean
statute.5
allowing
actions based
distinction and
logical
just
founda-
Whether there
nuisance,
rejecting
based
on
while
those
open
the doctrine is not now
disap-
negligence,
on
out of
actually arise
question
controlling
to us. The
considera-
proval
repre-
sovereign immunity
spite
tion here is
numerous
attempts
application.8
sent
its
to limit
it,
uniformly
this court has
attacks
*3
rejected
our law.6
them and retained
In
case such as this
to the state
either available
argue that a distinction
cases,
cause
be
defense or it
not. Whether
should made between those former
against
mostly
can be maintained
relating
to
of action
have
actions
depend upon
ad
property rights
damages
injuries,
should
complaint
it.
to describe
jectives
continuing injury,
and the
used
maintenance of a
to
Attempts make such distinctions lead
appreciate that
to
such as is
here. We
diffi
and unrealistic rationalizations
tenuous
some courts have made this distinction
impossible
logic to
apply
cult
against
government in
to
have
relief
allowed
justify.
decline to
such a
involving,
follow
though
nuisance
cases
214;
Am.Jur.,
Fourth District
Road Commission v.
49
§
See 81 C.J.S. States
(1937);
384,
States,
94
In to the say- permits arbitrary relief.14 In this case it is sufficient court’s action invasion *4 26-5-5, City Corp., U.C.A. 9. 13. Sees. 26-15-4 See Davis v. Provo 1953. 2, supra. Express Co. Pacific Intermountain Note See Hjorth Comm., Whittenburg, v. State Tax v. P.2d 549 9, supra. 12. Note the basis of the record reasonably court could determine that there PEOPLES FINANCE & THRIFT COMPANY nothing such extreme character CITY, corpora- OF SALT LAKE a Utah tion, Respondent, Plaintiff and here involved and the action. v. have concluded as indicated in this decision Wayne BLOMQUIST, regardless T. Defendant what have been said Appellant. County15 case of Shaw v. Lake Salt referred to above.
Affirmed. No costs awarded.
HENRIOD, J., and C. McDONOUGH CALLISTER, JJ., concur.
WADE, (dissenting). Justice
I dissent. I think we should follow in the
decision case of Shaw Salt
County.1 Therein, McDonough, Mr. Justice said: principal sovereign
“The sovereign
is not one which allows rather, injury,
to continue to inflict
one which absolves inju-
responding past
ries.”
This states a clear and correct basis for
limitation on the im- doctrine of
munity, which I think much would be justice play interest of and fair be-
tween the state and its citizens. I know of changed decision which upheld. feel that it should be 7, supra.
15. Note 1. 119