*1 COMMISSION, UTAH STATE ROAD Respondent,
Plaintiff and Friberg,
Arnold and Hedve FRIBERG his
wife, Tracy Bank Collins and Trust
Company, Appellants. Defendants and
No. 17275.
Supreme Court of Utah.
May 1, 1984.
been a long delay in the entry of a final decree and the property has substantially appreciated in value in the intervening time. Alternatively, they argue that if § 78-34-11 require does valuation in all cases to be determined as of the date of Campbell, Gesas, Robert S. Barney E. summons, service of that section is uncon- Roy Moore, B. City, Salt Lake for defend- stitutional applied to the facts of this appellants. ants and position case. The (1) State’s is threefold: Wilkinson, Gen., David L. Atty. Donald 78-34-11 fixes valuation as of the date of Coleman, Gen., S. Atty. Asst. Salt Lake service of irrespective summons City, respondent. and the entry decree; (2) of a final the Fri- bergs’ property should be valued as of that STEWART, Justice: date in event because the order for (here- The Utah State Road Commission immediate occupancy, shortly entered after State”)1 after “the commenced this action process, service of established the State’s 23, 1972, June part to condemn a of real right to condemn occupy owned Arnold and Hedve Fri- (3) property; any event, the Fribergs berg. was to be used for responsible were for the delay prosecut- construction of the segment southeast ing this action and should not permitted 1-215, a belt-loop freeway project in Salt profit delay. from that County. Lake granted trial court an *5 order of occupancy December, immediate in THE I. FACTS 1972, but for various reasons discussed be- low, completion Fribergs the The 5.33 acres located in owned proceedings delayed, was Fribergs the east Cottonwood area of the Salt Lake possession pursuant remained in stipu- to a years. Valley, they where lived for some 20 15, lation until approximately March 1980. June, 1972, judicial In the State commenced June, The defendants contend that after westerly the 2.58 proceedings to condemn 1972, the Fribergs’ property value of the Friberg property. August, In acres of the appreciated substantially. Prior to a trial 1972, answer, Fribergs alleg- their the filed to determine to be held in ing comply had failed to with that the State 1980, Fribergs the prop- moved to have the requirements statutory jurisdictional and erty valued as of the finally date the State necessary its to condemn to establish legal right condemn, established its to De- had no Friberg property and therefore the 12,1979. cember The trial court ruled that authority property. the to condemn the was to be valued when sum- stipulation dated Decem parties by The pursuant U.C.A., 1953, mons was served to 6, 1972, imme agreed that an order of ber § 78-34-11, years some seven and one-half entered, and on occupancy could be diate importance earlier. Because of the 1972, 14, months af some three December involved, question granted this Court leave answer, Fribergs filed their the ter the interlocutory appeal. to file an granting the entered an order district court The appeal contention on occupancy, pendente lite. immediate State § 78-34-11, that which states that the as- of a incorporated also the terms The order sessment of compensation and pro parties the stipulation between a condemnation action shall be deemed to (1) deposit the State would with vided that accrue as of the date of service of sum- $80,800 pay court the clerk of the district mons, does not necessarily fix the date of (2) the immediately plaintiffs; to the able valuation as of that date when there has Department 1. The Transportation Utah is the "State” to refer to the in this action and agency successor to the Utah State Road Com- generally to condemnors where the text indi- law, mission. govern- Under Utah a number of cates that the term should be so construed since private mental and granted entities have been principles the apply announced herein should power private the property by to take eminent irrespective of who the condemnor is. opinion, domain. In this we use the term 1969, 2, Policy seq., rent- Act of et Fribergs could remain on the mental 1, 1973, 4321, seq. September until and thereaft U.S.C. et free Stat. basis; (3) plain- Fribergs among the were the named er on a month-to-month and The thirty days’ no filed the federal action. Fribergs were entitled to tiffs who being required the had not filed to vacate State admitted an tice before Fribergs January, on federal property. The left the funds E.I.S. In the court court, thereby pre file deposit prepare ordered the State to and an with State, challenge enjoined pending to authori their E.I.S. and served E.I.S., ty property.2 filing performing an any to condemn the State further construction activities related to 14, 1973, August after the federal On belt-loop project.3 years four Some filed, the lawsuit referred below was later, E.I.S., the State filed an which was Fribergs they were State notified finally approved Highway Federal premises by vacate the October 7, 1978, February ap- on Administration Fribergs could but also indicated years eight five proximately months possession under certain condi- remain after service the summons and com- uncertainty Apparently tions. because instant plaint case. property would in fact be utilized that their Fribergs, following ap- specified project, year For more than a for the vacate, E.I.S., response proval notice moved to the Commission did proceeding. nothing proceed of I- dismiss the condemnation with construction agreed Friberg property denied when the State 215 in the area near the motion was posses- no action that the could remain and took to have the possible. property. long Although as sion as vacate record entirely point, clear is not on the reason 13, 1973, July com- an action was On delay appears for this have been the lack in the Dis- menced United States Federal event, project. funds for the by a trict Court for the District of Utah Fribergs, was attributable to group of citizens from the area Cottonwood although clearly to remain in wanted County opposed align- in Salt Lake who long possession possible. as proposed freeway through the ment of the 6, 1979, *6 February approximately area in which The ten suburban resided. On E.I.S., enjoin approval sought to the from fur- months after of the a sec- action State freeway challenging adequa- an the ther construction of the until ond federal action (E.I.S.) Impact by was cy Environmental of the E.I.S. commenced Cotton- Statement wood, Inc., neighborhood a pursuant group was filed to the National Environ- citizens’ U.C.A., 1953, provides occupancy for a waiver for immediate the court shall fix 2. except greater which, upon a claim of of all defenses compensation for within terms the time which, deposit the It if is withdrawn. parties possession be the in shall re- pertinent part: states in quired possession plaintiff. to surrender to the may judge plaintiff the court or a The move thereof, required any The E.I.S. was the State at time after the commencement 3. because uti- suit, defendant, matching notice to the for an on ... lized federal for construction of funds occupy permitting the the freeway. order The the State did not contest the re- sought pending premises to be the E.I.S., condemned although prepare quirement it that an on action, including appeal, such work and to do voluntarily appeal it decid- this contends that required. or a thereon as The court comply Policy the ed to with Environmental Act judge proof of the value thereof shall take ... though legally required it was to do even not so. premises damages which of the ... and of the The State’s contention is that the National Envi- ..., requir- and of will accrue the reasons for Policy Act after ronmental became effective the occupation, grant ing speedy or and shall project this was initiation of and therefore not equity according the motion to the refuse point litigated applicable. That in was not the payment A to a defendant [of the case.... pertinent proceeding, federal court and it is not property] to be value of the shall be held the an abandonment point entry The critical the here. the of all such defendant injunction against in federal further action con- excepting greater his for com- defenses claim building nection with the of 1-215. petition pensation Upon filing of the .... the general same area Fri- support from the as the indirect of the two federal law- Fribergs bergs. The were neither mem- suits. Cottonwood, Inc., parties bers nor to the Shortly ruling,, after the State action, although they did donate funds to Fribergs served the with a notice to vacate 7, 1979, organization. May the On the premises compliance in with the Decem- again enjoined federal district court ber 1972 order of occupancy. immediate undertaking State from further actions Fribergs The continued to again resist and respect project pending with to the 1-215 proved asserted that the State had not sufficiency determination of the of the jurisdictional prerequisites necessary to oppose E.I.S. The State did not the is- empower the State to condemn Fri- injunction. of the suance On October bergs’ property.5 Specifically, Fribergs 1979, that court held that the E.I.S. was asserted that there had been no evidence legally injunc- sufficient and dissolved the relating public necessity to the taking
tion. their importance or the relative Notwithstanding delays public good caused private injury. lawsuits, approximately Fribergs it was not until also contended that resolution of mid-November, 1979, Cottonwood, Depart- case, that the Utah Inc. which was at Transportation4 completed ment of pending time still in the federal dis- design court, “details for the final of the might north- trict proposed result in the segment Quadrant highway project’s south of the Southeast going forward and South,” between 4500 South and 6400 action the state court should segment Friberg property for which the await the outcome of the federal court ac- was needed. tion. 19, 1979, September December, 1979,
On while the federal In after the conclusion injunction Cottonwood, district court was still effect Inc. ease and the disso- case, Fribergs the Cottonwood injunction, filed lution of the federal parties a motion the instant case to stipulation incorpo- dismiss the entered into a that was complaint based on the State’s failure to rated into a court order dated December prosecute. Fribergs contended that 1979. That order established the appreciated substantially had State’s to condemn and reserved for during long value interval compen- between later determination the amount of the commencement of the condemnation ac- sation to awarded and the date for de- June, 1972, filing termining tion and their valuation. The order also direct- motion to dismiss premises and that it would be ed the to vacate the on 15, 1980, fix unfair to as of a time or March before disburse- October, $80,800 years some seven earlier. ment deposited the trial court denied State had with the court. The *7 ground specifically motion to dismiss on the the that order states that it was made delay bringing the prejudice Fribergs’ case to a conclusion without conten- Fribergs’ compensation had resulted from the direct and tions as to the issues. 1, 1981, supra. Legislature 4. See footnote In amended § 78-34-4 to state: "(3) property precedent taking That construction and use of all 5. The conditions to a are estab- U.C.A., 1953, sought by to be condemned will commence within § lished 78-34-4: court, a reasonable time as determined property appear: Before can be taken it must proceedings after the initiation of under this (1) applied it That use to which is to be (3) chapter.” The old section became the new law; is a use authorized addition, (4). Legislature section enacted use; (2) taking necessary That the is to such 78-34-19, provides for an action to set § and proceedings aside for failure to condemnation (3) already appropriated public If to some complete use, commence or construction within a public that use to which it is to be reasonable time. applied necessary public is a more use. 828 extraordinary delay motion to fix the valuation Because an occurred right statutory as of the date the to condemn in the instant case after the date
date
12,
established,
1979,
Friberg property
rather
was
December
fixed to value
and the
condemn,
process
right
of
than the date of service
was State established its
to
determined,
ground
assuming
denied
the trial court on
initial issue to be
at
required
point
78-34-11
value of
this
that defendants did not cause the
23,
U.C.A., 1953,
Friberg
delay,
land
as of
be determined
June
is whether
1972,
appeal
requires
and this
followed.
the valuation to be determined as
may
of the date of service or whether it
II. JUST COMPENSATION AND THE
allow valuation at some time other than
VALUATION OF PROPERTY
process was
when
served. Section 78-34-
I,
compensation
11 states that the
to
22
Article
of the Utah Constitu
assessing compensation
date for
provides
“[pjrivate property
shall
tion
shall
deemed to
be
accrue as of the date of
damaged
public
taken or
for
use
not be
service of summons:
just compensation.” The
without
constitu
just compensation
requirement
tional
of
de
purpose
For
assessing compensa-
of
equi
rives “as much content from the basic
damages,
tion and
thereto shall
principles
table
of fairness as
does
be deemed to have accrued at the date
law,”
concepts
property
technical
when
summons,
service
its actu-
private property
the State takes
for
al value at that date shall be the meas-
Fuller,
public welfare. United States v.
compensation
property
ure
all
for
801, 803,
488, 490,
409
93 S.Ct.
35
U.S.
taken,
actually
basis of dam-
(1973).
compensation
L.Ed.2d 16
For
to be
taken,
ages
property
actually
but
just,
fair and
it must reflect the fair value
affected,
injuriously
in all cases where
of the land to the landowner. “Just com
allowed,
provided
such
are
pensation means that the owners must be
preceding
the next
section [78-34-10].
put
good
position money
in as
wise as
improvements put upon
property
No
occupied
proper
would have
had their
subsequent to the date of service of sum-
Noble,
ty not
taken.”
v.
6 Utah
been
State
mons shall
included in the assessment
40, 43,
(1956).
2d
305 P.2d
497
[Emphasis
damages.
or
added.]
may
A
factors
affect
number of
All
pursuant
the value of
taken
the cases that have heretofore been
predeces-
proceedings, including
decided under this section or its
upon
legal procedures
nature of the
established
sor have relied
the date of service of
taking private property.
determining
E.g.,
A critical fac
summons in
valuation.
Utah,
valuing property in City
Ogden Fujiki,
tor is the date fixed for
621
South
(1980);
acquires
the condemnor
P.2d 1254
ex rel. Road
relation
when
State
Com-
Wood,
title,
case,
or in this
when entitlement to mission v.
Utah 2d
452 P.2d
(1969);
Engineering
A substantial in 872
ex rel.
condemn
established.
State
Peek,
the date of valuation and Commission v.
Utah 2d
terval between
(1953);
question
Oregon
the P.2d 630
the latter date
call
Short Line Rail-
valuation,
Jones,
especially
fairness of the
when
road Co. v.
29 Utah
829
are,
course,
of
We
constrained to
which time the
property may
value of the
§
fall,
construe
78-34-11 within the limitations
rise or
the statute is unconstitution-
(cid:127)
requirements.
constitutional
of
When val
conflicting
al as
with the constitutional
prior
uation is fixed at a date
to the actual
concept
“just compensation”.
of
taking
property
and the value of the
in
comport
To
require-
with constitutional
during
prolonged
creases
case,
particular
ments in a
necessary,
it is
proceeding so that the valuation
does
therefore,
protrac-
to consider whether the
a fair
property
reflect
valuation of the
judicial
tion
proceedings
of
and other cir-
“just compen
does not therefore constitute
cumstances that affect
the value of the
sation,”
fixing
the statute
the time of valu
land have had such an effect as to make a
applied.
ation is unconstitutional as
Oro
statutorily
valuation as of a
determined
v.
no-Veazie Water District
Penobscot
date
unfair.
Uvodich v. Arizona Board
Co., Me.,
County Water
State v.
Annot.,
property.
generally
See
(1960).
36 A.L.R.3d
(1971).
751
results,
To
such
courts have
avoid
prior to the
of
set valuation dates
service
determining
a valuation
In
whether
the value of condemned
summons when
unjust
by
result in
date fixed
statute would
in
property,
initially included
the area
not
compensation,
may
a court
have to consider
condemned,
by
has been diminished
to be
influence value.
numerous
factors
nearby
pur
properties
of
the condemnation
Regents, su
v. Arizona Board
Uvodich
of
planned
condemnation of a
suant
teaches,
pra. Experience
example,
for
Whittier,
City
Klopping
v.
large
area.
re
that the announcement of an area-wide
of
39,
1,
Cal.Rptr.
104
831
Hollis,
accomplished by
93 Ariz.
conformity to strict constitutional
right of the
Neither the constitutional
ments.
landowner or the
State
context,
ground
we
if
In a somewhat different
fairness would find root
firmer
statutory
so
language
the term “deem” is to be
were construed
have held that
purpose
loosely
permit
as to
the service of sum-
light
to be
construed
regularly challenged
mons date to be
on
on December
1972.
on
Based
that con-
clusion,
that, most,
appraisals
might
the basis of
at
the State asserts that the
*11
property
result in
thereafter
remained
solely
minor differences in the valuation.
on the
by
permission
contrary,
right
On the
State. The State’s
the constitutional
theory seems to be that entitlement to con-
protects,
directly
and the interests it
both
demn was established at
time.
indirectly,
and
greater protec-
are accorded
addition, the
delay
State contends that the
by
degree
certainty,
tion
a substantial
solely
this case is attributable
to the
litigation
which will reduce the cost of
and
own actions and that
should
promote
expeditious disposition
of con-
permitted
profit
not be
delay
from a
suits, thereby allowing
demnation
the con-
they themselves caused.
adjust
disruption
demnee to
with as little
possible
impact
of the condemna-
A. Order of
Occupancy
Immediate
tion.
We turn first to the issue of the
legal effect of the order of immediate occu
any given
Since
case the number
pancy.
In a
proceeding,
type
and
of factors that affect value and
coming
State has the burden of
forward
weight
to be accorded each factor will
of,
with the evidence
and the burden of
vary,
possible
pre
it is not
to formulate a
persuasion
establish,
right
its
to con
guideline
cise
a
when
court should ad
prove
demn. The State must
that the tak
here to the service of summons date and
ing
property
necessary
is
and that
it;
depart
when it should
from
the nature
property
will be
public
dedicated to a
problem
simply
permit
does not
use. Tanner v. Provo Bench Canal &
greater precision. Suffice it to state that
Co.,
Irrigation
105,
118,
40 Utah
121 P.
valuation as of the service of summons
584,
(1911),
aff'd, 239 U.S.
323,
589
36 S.Ct.
rule,
departure
date will be the
and
from
101,
(1915).
See
v.
833
premise,
the State concludes that
its
An order of immediate occupancy
pendente
lite is entered
only
to condemn was fixed when the order
autho
posses
rizes the State to take immediate
occupancy
immediate
was entered
adjudication
sion until a final
of the merits.
that valuation as of the date of service of
occupancy
order of immediate
“[A]n
fair
process was
and reasonable because
nothing more
interlocutory
than an
order.”
there had been no undue
between the
ex rel. Road
State
Commission v. Daniel
time of service and the time the order of
son,
220, 222,
247
Utah
P.2d
occupancy
immediate
was entered. The ar-
(1952);
Copper
Utah
Co. Montana-
Cop-
language
in Utah
gument
is based on
Bingham
Co.,
Mining
Consolidated
per
Montana-Bingham
Co. v.
Consolidat-
*12
423, 436,
See
Utah
255 P.
676
Co.,
Mining
423, 437,
ed
69 Utah
255 P.
§
also
(which
assumes that an or
(1926):
677
occupancy
der of immediate
is an interlocu
predecessor
Under
to
[the
78-34-9]
tory
only).
order
apparent
power
it is
that the
of the court
case,
In the instant
the order of
grant
application
to
or refuse an
to occu-
face,
occupancy,
immediate
on its
did not
condemned,
py premises sought
to be
jurisdictional
decide the
prece
conditions
action,” is,
“pending
large
to a
ex-
judgment
dent to a final
and decree. The
tent, discretionary, depending upon the
order states:
“It
is further ordered and
showing
necessity
speedy
for a
occu-
pending
adjudged
hearing
that
further
wisely
pation. To
exercise the discretion
may
and trial on the issues that
might
require
the court
well
action,
presented
in this
subject
to
showing,
only
to make a
not
as to the
the conditions herein set forth” the Fri-
but
necessity
speedy occupation,
for a
bergs may not interfere with the State’s
prima
showing
also a
as to his
facie
possession
premises (emphasis
add
condemn,
right
right
to
that
be con-
if
ed).
findings
The trial court made no
as to
troverted.
[Emphasis
added.]
authority
to condemn. The or
State’s
clearly contemplated
State misconstrues both the
der
the issues
The
Copper
relating
authority
to the State’s
to con
Utah
language
and the nature
demn were to be decided in a “further
proceeding
occupancy.
of a
for immediate
hearing.”
above-quoted language only
The
states that
authority
if the condemnor’s
to condemn is
right
condemn,
State’s
to
if
challenged,
prima
showing
a
facie
only
challenged,
finally
can
be determined
right
support
to condemn must be made to
merits,
hearing
at a
after a trial on the
not
occupancy.
an order of immediate
How
occupancy.
on the motion for immediate
ever,
prima
showing
authority
facie
is
v. Denver Rio
Railroad
State
&
Grande
authority.
a final determination of
not
Co.,
236, 238,
P.2d
8 Utah 2d
927
showing simply requires
Such a
the State
(1958).10 Since an order of immediate occu
prove
to adduce some evidence
pancy only requires prima
proof
facie
necessary preconditions
has fulfilled the
condemn,
right
that order is not a
power
of eminent do
the exercise
adjudication
judi-
final
on the merits. Res
main,
entry
procedure
similar to the
of a
application
cata has no
the absence of a
injunction. The law could
preliminary
Pegues v. More
adjudication.
final
Cf.
Board,
expel a
hardly
allow the State to
landowner
house
Parrish School
Interstate 215 is a to establish that it has com project, plied comply necessary funded with all prece State had to conditions Policy with National Environmental dent. The occasioned the federal (NEPA). requirement Act justify penalizing One of that Act actions cannot the Fri- preparation filing study bergs is the by denying a on part them a of the value impact federally project a funded property, on of their appreciated while
835
comply
pending.
It
the with the State’s failure to
with
those actions were
was
fed-
obligation
law,
that had an affirmative
eral
had a
State
reasonable
NEPA,11
basically
comply
and it was
with
expectation that the condemnation of their
proceedings
delayed
the federal court
might ultimately prove unnecessary.
land
the condemnation action.
that the
The contention
VALUATION DATE
IV.
appreciated
value of their
should lose
The instant
clearly
case
calls for a
participation in
of their
because
departure
valuing
Fribergs’ prop
simply
federal action
does not wash.
erty
process.
as of
date of service of
State,
of constitutional
as a matter
period
from the service of summons to
law,
penalize
cannot
assertion
to condemn
establishment
right by requiring
give up
it to
of a federal
greater
normally
has been far
than would
right.
a state constitutional
Cf. Lefkowitz
required
prosecute
Turley,
v.
70,
316,
414 U.S.
94 S.Ct.
38
case to a conclusion. There has
been
Klein,
(1973);
Spevack
v.
L.Ed.2d 274
385
substantial
increase
the value of the
511,
625,
U.S.
87
pensation cannot be defeated because lants. long possi- retain their land as as wanted to was, all, possibility There after ble. DURHAM, J., concurs. alignment, apparently was that finally years until after established not OAKS, Justice, (concurring): lawsuit, been might have filing of remand and in the reversal and I concur necessity of thereby avoiding the changed, opinion, I and III of the Court’s in Parts Fribergs’ land. Under those taking references to constitutional circumstances, except for the especially when combined injunctions being applicable and were Although did not NEPA as issued, contends that it 11. the State NEPA, determining comply we do not need to is a sufficient basis for have to with that apparently litigation did not that issue. The State not address really litigate caused was that the district that issue in the federal Fribergs’ fault. See footnote 3. parties in those actions treated court. Since the paragraphs law the last few of Part and both preamble are referenced in the to § IIIB. 78-34-11. I Since the join compensation the Court in its conclusion and was pursuant “allowed” reasoning the circumstances of contested this § proceeding contemplated (af- case neither 78-34-10 stipulation (quoted the 1972 adjudication ter right condemn), dissent) nor the 1972 order of immedi- § specified the valuation date 78-34-11 occupancy ate deprived inapplicable to them. In this circum- right litigate their whether the State had stance, property owners are entitled to precedent established the “conditions a determination of § value as of the date of taking” specified in 78-34-4. The Fri- taking and to interest unpaid on the bal- bergs right did not “abandon” their to liti- ance of that amount from that date or from gate question this because did not they relinquished date possession, $80,000 withdraw the depos- that had been whichever is later. pursuant ited to the order of immediate U.C.A., occupancy. 78-34-9. case, In this view of the the constitution- IWhile share the dissent’s view that the al discussion in II plurality Part best interests of all concerned dictate that opinion view, is unnecessary. my it also State’s to take eminent domain questions raises troublesome that should possible, be resolved as soon as not be raised and need not be answered. owners who do not abandon their defenses The summons date that speci- in the specified manner in 78-34-9 must fies for in adjudicated valuation cases is a have an opportunity litigate them. Ei- certain question. answer to a vital That party ther bring can that issue on for deci- certainty yields to confusion under Part II sion, with or without a simultaneous deter- plurality opinion, which turns the damages. mination of Because that was "statutory valuation date into a “rebuttable case, not done in this the effect was to presumption” “imports degree postpone the date for the determination of flexibility statutory into the valuation value, explained below. scheme.” Under reasoning, the ser- remand, vice-of-summons
On date could not the court should award Fri- constitu- tionally bergs applied compensa- to measure damages on the tion or where the basis of the value of their on the proceeding “prolonged” (elsewhere was date on re- which the State's to condemn ferred to as a “substantial interval” or finally was established court order on “extraordinary delay”) and where the stipulation value parties, *15 December property “substantially had appreci- 1979. This result follows from the fact during ated” the right interval before the the State’s to condemn the Fri- to condemn was established “so that the berg property compen- and the amount of valuation does not reflect a fair valuation sation and paid that had to be for property and does not therefore con- it were adjudicated never in a contested ” ‘just stitute compensation.’ complex- The proceeding. 78-34-11, Section which estab- administering ities of a constitutional doc- lishes the compensation measure of and trine generalities based on such are evi- damages as the “actual value” at the “date appreciation dent. How much is “substan- summons,” only of the service of applies, tial”? delay adjudication How much in is by terms, its to “all cases where such dam- “extraordinary”? proceeding When does a ages allowed, provided are as in the next “prolonged”? become if And these condi- preceding section In the con- [78-34-10].” satisfied, tions are “flexibility” how much text of 78-34-11 and its cross-reference in a valuation date does the Constitution § 78-34-10, quoted to al- reference to require? “damages” lowance of seems me in- to to compensation clude both damages. and We impose should not necessity subjects 78-34-10, Both are answering treated questions these adjudicated point Coleman, If there is a According by cases. at which state to an affidavit he prosecuting telephoned Fribergs’ delay following a condemnation action counsel receipt agreed of the above letter cause the summons date to be un- and would “as an accommodation to him applied rapidly rising constitutional as in a [Coleman] market, delay proceeding displace would to the de- issue can in a be settled fu- long as he fendants as could.” Coleman’s presents unavoidably. ture case which it affidavit further states: 78-34-4(3) (re- The recent amendment of During pendency action, quiring state use to within of this commence there been several time have verbal communi- reasonable after the initiation of con- cations Affiant and for between counsel proceedings) likely demnation less makes it defendants, and request delay event, to any issue that this will arise. against proceeding the defendants has need not be resolved on the facts this repeatedly been made defendants’ at- case. torney agreed cooper- and Affiant has to possible ate to the extent to avoid dis- HALL, Justice, dissenting: Chief placement of long as defendants as dispositional presented by issue The this possible. fact, appeal simply namely: one of Affiant within the re- last month has plaintiff unreasonably delayed whether request ceived a verbal from defendants’ proceedings prej- the condemnation as to so displace proceedings counsel to to Fribergs’ appropriate udice to said until year. defendants next Affiant damages. and The trial promises said he could he while make no plain- resolved this court issue favor would what could see be done. tiff, its supported decision is sub- precludes evidence that this stantial Court action under- Considerable has been substituting judgment its for that of December, in this case taken since court.1 the trial telephone conferences that have plainly plaintiff record The shows that during place pendency taken of this postponed final condemnation the Fri- issues cause involved discussion of bergs’ until 1979 as an accommo- case, important deferring to this such as who, Fribergs, according dation to displacement of defendants .... counsel, “didn’t want to their surrender willing plaintiff ready, has been under circumstances” proceed and able with this cause “stay long wished to as could [in would have done so it not action and had hope perhaps highway would that] been for the conduct of the defendants built.” never be counsel. and their Following stipulation deny having do not made occupancy” by plaintiff, “immediate requests plaintiff. such requests made several Donald persuading plaintiff In addition to Coleman, plaintiff, coopera- counsel for postpone proceedings, allowing them to remain tion litiga- Fribergs themselves initiated federal *16 property long A possible. as as on the plaintiff prevented tion that from continu- September to Coleman on letter written ing plans In beltway. with its for the 1973, by Fribergs counsel for the contained Group Brinegar,2 Citizens Cottonwood v. request: one such brought by other Fribergs a suit the and events, Fribergs citizens, all the wish to re- In Cottonwood-area the citizens’ occupancy proper- the and the fed- group alleged by plaintiff tain use violations end, long possible protection and ty as as and to eral for environmental laws you.... an hearing prayed “enjoining look to from for order defendants I will Utah, (D.Utah 11, 1974). Baugh, 2. No. Jan. 1. 660 P.2d C-225-73 Kinkella taking any They directly indirectly in have either or from action connection with Project including authorizing or ... filed one or two actions federal court permitting further or continued condemna- seeking of this or cancellation alleged tion” until the violations had been project. To now seek dismissal this response, corrected. In the federal district nonprosecution ineq- case would be for pending court in which that suit was issued [Emphasis uitable. added.] requiring preparation an order of an envi- Fribergs every It clear that the made impact project statement on the ronmental procrastinate effort to the date of condem- planning suspending all related and long possible they nation as as and that plaintiff engineering by except work would not have welcomed an earlier con- impact by preparation necessitated of the though might demnation date even this prohibited statement itself. The order also acquire proper- them to other have enabled qua- construction work on the southeast ty prices at a time when were lower. right pur- plaintiffs drant and limited Fribergs for the Counsel stated this re- property. effectively pre- chase This order gard: its proceeding vented from with Fribergs didn’t want to surrender [T]he January, plans beltway for the between any under circumstanc- issuance, April, the date of its _ [M]oney question. es wasn’t the At approval final the date of point question they this was could impact statement. stay property. on the February, following ap- final Fribergs It is true that the should not be statement, impact Cotton- proval of the penalized having for exercised their wood, Inc., Fribergs group to which the relating litigate legality issues financially, filed a second had contributed beltway project plaintiff’s right and to adequacy challenging federal suit However, Fribergs’ right to condemn. waiting impact statement.3 Without legal prolonging all means of to exercise issues raised for resolution of the further process did not include the condemnation suit, by plaintiff served the this second profit resulting delay June, a notice to vacate in with themselves, claiming by contraven- 1979. The continued to resist re- stipulation tion of their and the well-estab- asserting in linquishing property, their an date, statutory apprecia- lished valuation “Objection Premises”: Vacate [Notice to] subject property tion on the caused such Cottonwood, Inc.,] Until case has [the delay. Fribergs’ property Valuation of the patently and until it is been resolved penal- as of the date of summons would highway project clear that the said will them, deprive them of ize nor would it in the im- proceed on a defined schedule if benefit that would have obtained future, of these mediate right. they had not exercised this Defendants not be taken or con- should demned. Moreover, stipulation executed parties in authorized 1972 that later, Fri- Less than three months to enter its order of immediate occu- court bergs dismiss the condem- filed a motion to pancy sets forth terms of prosecute, complaint nation for failure to wholly that are inconsistent with a 1979 grounds argued those relying on similar to stipulation reads valuation date. present deny- motion. In support toto as follows: motion, ing the trial court found as deposit follows: 1. Plaintiff shall with $80,000, the sum of Clerk Court Although pending this action has been paid by shall the Clerk to the years, good portion some seven delivering forthwith placed upon direct or defendants delay can be *17 of defendants the counsel record for indirect conduct of defendants. Cottonwood, (D.Utah 1979). Hurley, Inc. v. Nov. No. C-79-0081 3. plaintiff clearly unjust
check or warrant of in the sum fore Fribergs, to allow the $80,000. date, by setting their own valuation to re- appreciation 2. Defendants shall be entitled to re- ceive in addition to the sub- possession premises main in of the rent already stantial benefits received under September peri- until free 1973 and agreement. their ods thereafter on a month month ba- U.C.A., 1953, provides 78-34-4 that be- sis. Defendants shall be entitled to 30 appear fore can be taken it must day being required advance notice before that the applied use to which it is to be is a premises. vacate use taking authorized law and that the 3. Interest on amount recovered necessary is to such use. Section 78-34-9 $80,000 by defendants in addition to the empowers grant the court to immediate begin above mentioned will not to accrue occupancy premises pending of the final prem- until defendants have vacated the proceed- determination of the condemnation point said in time ises. Interest from ing. power largely discretionary, is provided by at the rate Section shall be discretion, and in the exercise of its 78-34-9 Annotated as amend- Utah Code may require showing court well that the ed. proposed use is authorized law and that foregoing stipulation afforded the taking necessary contemplat- is for the Fribergs monetary advan- two substantial dispute.6 ed use if those issues are statute,4 tages, required by one of which obliged proof The court is to take of the is neither contem- but the second of which premises sought value of the to be con- First, plated required by nor statute.5 demned, damages that will accrue from $80,000 agreement their that the sum of be the condemnation and the reasons for re- paid placed the in a forthwith quiring speedy occupation grant and shall position immediately invest those funds occupation according or refuse immediate they as fit. The fact that subse- saw equity accept of the case and the relative quently chose not to the funds and parties.7 voluntarily deprived themselves of accrue to the thus advantage consequence in the is of no precedent occupancy, As a condition Second, appeal. stip- resolution of this deposit the condemnor must the clerk with permitted ulation to remain in equal to least 75 of the court a sum at possession They rent-free. percent appraised the condemnor’s value years enjoyed eight since some have property, payment thereof to the occupancy, adequately com- rent-free condemnee shall held to an abandon- be be according stipulated pensates them to their except ment of all defenses the claim for thumb, bargain plaintiff. As a rule of with ease, greater compensation.8 In this monthly a sum rental value is deemed $80,000 Fribergs agreed payment equal percent one of market value. would be made forthwith. $80,000figure paid assuming that the Even stipulation of The tenor and effect of the by plaintiff represented full market over parties to relieve the was thereof, only percent rather than value present proof the need to that the condi- statute, monthly required by infra, the as precedent taking provided by to a tions $800, $9,600 per an- rental value was or §§ and 78-34-9 had been met. num, Fribergs, eight-year over plain language This is to seen in that the advantage of rent-free period, have had the $76,800. agreement stipulation It is there- reflects the occupancy at valued supra. 4. U.C.A., 1953, § 78-34-9, 78-34-9. 7. U.C.A., 1953, § 5. Id. 8. Id. Montana-Bingham Copper Consoli-
6. Utah Co. v. Co., Mining P. 672 dated 69 Utah *18 County. light magni- parties was entitled to Salt Lake Furthermore, occupancy. project immediate tude of such a and the drastic stipulation recite the existence of does not change topography, it make in the would it controversy authority a to take or to beyond comprehension par- seems that the necessity taking, and of course it of agree ties would to an order of immediate preserve any issues for a does not such if in occupancy legitimate fact of issues In the exercise of future determination. authority necessity taking or re- discretion, accepted stipu- its the court mained to be resolved. occupancy lation and entered its order opinion The main concedes that it is im- necessity hearing and the without the guideline possible to formulate a for when evidence, taking of and for all intents and depart statutory the courts should from the complete. purposes taking was then purpose date of service of summons for the All that remained a determination of was assessing compensation damages.10 damages entry judgment.9 fallacy considering Therein lies stipulation preserved The fact departure therefrom at all. To do so in- only the issue of for trial is not controversy in every vites case and affords surprising. contrary, wholly On is parties manipulate a means for the consistent the usual course of events with measure of that has hereto- proceedings. in condemnation Whenever prevented by fore been adherence pertaining authority to condemn issues statutory provision. necessity taking or exist at the time unpersuaded I remain that the facts of occupancy sought, an order of immediate prompt this case should this Court to de- concerned, interests of all includ- best U.C.A., part explicit language from the court, ing those of the dictate that those § 78-34-11, which establishes the val- prior to the issuance of issues be resolved uation date as of the date of service Otherwise, occupancy. the order of summons. unnecessary condemnor runs the risk of judgment I would affirm the of the trial defeat and the resultant loss of sums ex- court. pended preparing property for its Similarly, the condemnee runs
new use. irreparable property the risk of harm to the HOWE, J., dissenting concurs in the permitted occupy if the condemnor is HALL, opinion of C.J. and alter the accommodate new use. particular graphi- facts of this case foregoing
cally illustrate the discussion. designated
Plaintiff’s use of remaining the construction of a
entailed highway system
segment of the belt-route U.C.A., U.C.A., 1953, 9. As 78-34-15. 10. Provided for 78-34-11. 1953, § provided