*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 80 P. 732 cases, however, In none of these the value of the has been substan any degree comparable tially period affected in the between valua was taking. tion and the actual the instant case.6 *8 Utah, Fujiki, appreciated City Ogden land had 6. In South v. 621 because the 15% to of above, (1980), condemning service and the P.2d 1254 cited the 20% between the of summons authority judgment. City possession land final the had not ob- did not take Because judgment occupancy, land- tained an order of immediate the until a final was entered. The just only owner claimed that a denial of com- Court held that authorized inter- § it was compen- City's occupation pensation est from the date of the not to award interest on the actual process and that the denial of not constitute sation award from the date of service of interest did

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 348 A.2d 249 400, 229, Regents, Ariz.App. 9 453 P.2d of 235 (1975). 89 Ariz. Griggs, Accord State v. (1969), court, the construing a statute 70, (1960); P.2d 174 Sanitary 358 District Utah’s, similar to addressed the issue of Chicago Chapin, v. 226 Ill. 80 N.E. valuing property fairness of that had (1907).7 leading 1017 A in the treatise area depreciated taking: as a result of the law, of eminent domain 3 on Emi Nichols (3d 8.5[2], nent Domain 8-108 to 8-111 State v. Hollis Ariz. 379 P.2d [93 1981), (1963)] ed. states: recognizes arbitrary ap- plication [setting of A.R.S. 12-1123 filing In several states it is held that the condemn, petition being property valuation date of condemned at step devoting summons], first actual toward the time of service of is not use, property public point to a marks a required application where of the statute just time that is as fair and to both unjust compensation would result parties fixing proper- for value of property logical owner. conclu- selected, ty any that as could be and it sion, therefore, is that the time as of has, consequently, adopted as the been property which the evaluation of the established date as of which are comport should be made must with the however, jurisdictions, In such assessed. peculiar facts and circumstances of corporation unreasonably delays if a property ease so as to assure the owner prosecution petition of its while the land just, which is as contem- value, advancing application plated by the Arizona Constitution. great wrong the rule would work Hollis, 93 Ariz. See also State owner, injustice petitioner P.2d 750 acquire property would be able to at vein, County In a similar Board Com much less than its value at the date of County v. missioners Dela taking_ pro- Where the statute of Garfield (1978), ney, Colo.App. 592 P.2d 1338 vides for the date of valuation at the requiring held that a statute the determina step acquisition process, initial in the tion of valuation as of the date of the order upon passage of a resolution such as condemnation, possession could not be construed strict authorizing and then ly fundamentally the result would permits protracted period of time for when during expropriated prosecution proceeding, unfair to the landowner. Cf. rate, established; I, any firmly but if a violation of Article 22 of the Constitution. the rule is this, applied claim was made that the valuation date was No it should be to a case like where court, improper. brought the owner has not been into steps and no have been taken for several Chapin, 7. In the Court stated: greatly years, during has ad- filing step petition is the first actual value, wrong and vanced in it would result in use, devoting public and just toward to a injustice. ordinary cases that time is as fair and 80 N.E. at 1019. parties fixing value of the to both property adopted. At that could *9 830 70, expropriation private the value of Griggs, 89 Ariz. 358 P.2d 174 an of

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. 104 500 P.2d 1345 8 Cal.3d agency, development plan by government (1972); Valuation Under Orgel, 1 L. the initiation of condemnation prior to § Domain, (2d Eminent Law 105 at 447 may deprecia proceedings, result severe of Virginia 1953). United States v. ed. long the condem tion in land values before Cf. Co., 624, Power Electric and 365 U.S. 81 Thus, once proceedings commence. nation gener 784, (1961). See S.Ct. 5 L.Ed.2d 838 commenced to con judicial proceedings are Note, ally Liability The Condemnor’s parcels large in a demn a limited number of Damages Arising Through Instituting, parcels, project involving numerous there Abandoning Litigating, or Eminent Do impact on the may be a substantial adverse Proceedings, 1967 Utah L.Rev. 548. main remaining ini properties not value token, By a valuation date later the same City tially project. included in the of may than that established statute Kacmarik, v. Op.2d 17 Cleveland Ohio delay in required when a the condemnation 811, (Ct.C.P.1961), 135, 177 N.E.2d 813 proceedings results from causes for which court observed: responsible not the condemnee is down, begin houses to come tenants As nonrecognition result of would out, nearby neighbor- homes move compensation.8 in the award of value deserted, vandal- hood deteriorates or is in, appearances sets and values ism often Therefore, requires if frequently depreciate with the result that Fribergs’ property as the valuation of the greatly owner handi- irrespec service of summons of the date of capped presenting jury his case to the of all circumstances that affect value tive gets time his land into court. though proper the value of their and even ty substantially appreciated by the important and fundamental had §I, its to con protected by Article 22 of the time the State established demn, subject 78-34-11 would be unconstitution Constitution cannot be made Utah §I, 22. See manipulation applied al under Article protraction undue or of Whittier, City Klopping v. of 8 Cal.3d process or to the effect (1972); procedures Cal.Rptr. ac 104 500 P.2d 1345 legal rules or that take no County Commissioners Gar Board factual varia count at all of the numerous Delaney, County Colo.App. 41 affect fair values. A failure to bles that field (1978); Orono-Veazie Water into a loss of value caused 592 P.2d 1338 take account Co., County process itself in deter District v. Penobscot Water the condemnation generally Me., See mining just compensation would result 348 A.2d just general guarantee compensa- publicly plan announced of area- the constitutional 8. A protects private property the effect of arti- wide condemnation ficially increasing have owners not tion properties State, 78-34-11, the value of interpretation our dis- initially included in the area to be condemned infra, appropriate adjustment cussed allows an judicial proceedings com- have been before protect in the date of valuation to be made to menced, thereby resulting in a windfall to the against having pay award the State an Miller, United States v. 317 U.S. landowner. See 369, compensation unfair to it. (1942). Although S.Ct. L.Ed. 336

831 Hollis, accomplished by 93 Ariz. 379 P.2d 750 the statute. State Brimm v. Co., (1963). Valley 2 Banking Cache Utah 2d (1954), 269 P.2d 859 the Court stated that § However, language of 78-34-11 ad- the term may “deem” be construed to es- mits of a more flexible construction than tablish either a a conclusive or rebuttable placed on it The statuto- State. presumption, depending on the in context ry term “deemed to have accrued” does not which it is used. statutory Under the mandate that the date of service of sum- consideration, scheme then under the Court mons the date for in all cases be valuation held that the term “shall be deemed” regard and without to the facts of the impose should be construed to a rebuttable particular ease. presumption. place, In the first a fundamen varying The factors that af statutory principle tal of construction is just fect the compensa determination of that a statute should construed as a be tion, necessity practicable of a and rea whole, to and its terms should be construed sonably predictable procedure, rule of and be harmonious with each other and the § language of 78-34-11 lead us to con objective overall of the statute. Cannon v. clude that the term “deem” as used in Utah, McDonald, (1980); 615 P.2d 1268 presump 78-34-11 creates a rebuttable Utah, (1974). Bishop, P.2d Crist v. determining tion that the date for valuation Moreover, we are constrained to construe process. shall be the date of service of statutory to an unconstitution terms avoid presumption, To rebut the unfair- application al of the statute. State v. valuing property ness of as of that date Wood, Utah, (1982); 648 P.2d 71 In re must be evident and the difference value Utah, Boyer, 636 P.2d 1085 insignificant. must not In the ma- be vast Legislature’s nonmandatory use of cases, jority of the date of service of sum- language policy flexibility. indicates a of appropriate mons will date for deter- be emphasized by provi- That conclusion is valuation, judicial mining and no time need improvements 78-34-11 that no sion of determining expended be whether anoth- placed upon property subsequent advantageous er to one date would be more process service of shall be included degree. party or the other to some small compensation damages. assessment of imply “slight” not mean to We do provision redundant if the That would be rights of constitutional should violations prior flatly required sentence assessment perimeters of a constitu- overlooked. of in all cases right slowly not to constricted tional are as of the date service of summons. encroaching, slight, but ever series Furthermore, statutory phrase However, just com- violations. imports degree “deem have accrued” pensation unlike other constitutional is flexibility into the valuation scheme of right; depends and reasonable on a fair flexibility policy 78-34-11. The necessity, money By value. estimate particularly by the word demonstrated physical- does not turn on such a valuation meaning of the term must of “deem.” The or ly ascertainable facts or even on a more context, statutory course arise from its see value, defining precise less formula for but (1971), 181-87 11A Words & Phrases imprecise judgments rather on variable and environment, espe- its constitutional generally, well as persons made who reasonable validity and its cially when the of a statute always, if come different conclu- closely dependent upon application are so sions. require-

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. 60 L.Ed. 307 Williams exception. that rule will be the Co., Hyrum Gibbons & Sons Utah, 602 Finally, it should be noted that the 684, (1979); P.2d Mining Monetaire 688 presumption by established v. Co. Columbus Rexall Consolidated be rebutted either the State or Co., 413, 426, Mines 172, 53 Utah 174 P. property showing owner that a valua (1918). County Salt Lake v. Ra- 177 Cf. tion as of the date of service of summons moselli, Utah, 567 P.2d 184 would result in an award that would not Only after the State has established provide “just compensation” to a landown action, elements of the cause of must the er or be fair to the State. It follows that prove owner the amount of com presumption burden to rebut the estab pensation to which he is entitled. State ex §by party lished 78-34-1 is on the rel. Road Taggart, Commission v. 19 Utah asserts that valuation as of the date of (1967); 2d Utah Road 430 P.2d 167 Hansen, service of summons would be unfair.9 Commission v. 14 Utah 2d (1963); Tanner v. Provo 383 P.2d 917 Co., Irrigation Bench supra. Canal & III. DELAY IN PROCEEDINGS The State contends that the trial court argues The State that because the Fri- found that the State had met all the statu- bergs challenged authority the State’s tory and requirements constitutional neces- hearing condemn at the on the motion for sary right for the State to establish its occupancy, immediate the doctrine of res condemn the judicata again when trial court adju- bars the occupancy dicating entered its order of power immediate the State’s to condemn. On concurring opinion requir- 9. The reads 78-34-11 to would lead to the anomalous situation of fix the date of valuation at the time ing of service of depending different valuation dates on the only right summons when the to condemn is extraneous factor of whether the to con- actually adjudicated, irrespective of whether val- demn is contested. Neither the nor the adjudicated. uation is also That construction position. State has asserted that plain meaning strains the 78-34-11 and

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 706 F.2d 735 Pierce, judgment Fen (5th Cir.1983); his land before a final Lynch, Merrill from Smith, proof Haydu, ner & Inc. v. without at least some of its F.2d 391 entered (5th Moore, generally 1B J. Cir.1981). See power to do so. may litigating money deposited by withdraws the the State in 10. A defendant be barred Otherwise, obtaining authority after an order the order. 78-34-9. the merits of the State's granted power litigat- occupancy has been if he condemnor’s to condemn of immediate plenary litigate those issues or he ed in a trial on the merits. waives his Lucas, Currier, J. & T. Moore’s Federal Although environment. the State now (2d 1983). Practice ed. suggests subject that it was not NEPA, 0.409[1] stipulated it nonetheless in the first federal express reservation court action that it was and would file an power of their to contest the to con Impact Environmental Statement. The in- plenary proceedings demn in prohib is not junction issued in that case and in the fact, judicata. ited the rules of res case, subsequent which was filed to test 12, 1979, as late as December adequacy E.I.S., of the State’s had the stipulated and the State that the placing limbo, effect of project whole convey only would title two issues including legal proceedings against the evidentiary would be reserved for an trial: Fribergs. amount of and the date of valuation. Preliminarily, we note that fault is really the issue here. The law does not Delay B. The in Consummation require meekly yield landowners to Proceeding State’s claim to condemn his or her land. found, The trial court and the State as- Every country landowner in this has a appeal, serts on this that the sole blame for right to every legal resist with means avail in the consummation of the con- *13 expropriation able the of his or her land. proceedings demnation rests on the Fri- The right of eminent domain does not re bergs they because filed the first federal quire passivity part docile on the of a land against State, court action the which result- Fribergs owner. Nor did engage the injunction against ed in an pro- the State’s tactics that unjustifiably protracted this lit ceeding project, with the 1-215 and because igation by demands for a series of continu they financially supported the second fed- ances. All pursue did was an estab eral challenging sufficiency action the lished, well-recognized and well-founded le E.I.S., the which injunc- also resulted an gal remedy compel the comply State to tion. The State also contends that when with federal Fribergs’ neighbors law. The delay undue pro- occurs a condemnation challenged validity then of the E.I.S. ceeding only remedy is dismissal of the compliance the State’s with NEPA. Notwithstanding action. position, Although good- State have had a successfully opposed State has two motions faith belief that it did comply not have to to dismiss the action for the State’s failure NEPA, with stopped nevertheless was prosecute the case to a conclusion. dead in its tracks federal injunc court Fribergs, hand, The on the other contend tions comply because it failed to with that that the long delay dominant reason for the law. That failure existed even before the between the service of summons and the State against commencéd action the Fri- acquisition final of title the State some bergs. years seven and one-half later was prosecute. Indeed, State’s failure to even Since the State has the burden apart lengthy delays from the occasioned proving its power to exercise the actions, by the Fribergs two federal condemn, Mining Monetaire Co. v. Colum assert, and there record is some evidence to Co., bus Rexall Consolidated Mines 53 assertion, support the that the State had 413, (1918); Utah 174 P. 172 Tanner v. alignment even settled on a final Co., Provo Irrigation Bench Canal & 40 highway until some time in 1979 or 1980. 105, (1911), Utah 121 P. 584 the State must prepared partially federally-

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 17 L.Ed.2d 574 S.Ct. Fribergs' during lengthy period land Co., (1967); Terral v. Burke Construction proceedings pending. have been 529, 188, L.Ed. 352 42 S.Ct. 257 U.S. Although the record not disclose does how Denton, v. Southern Co. (1922); Pacific occurred, appreciation much has take we 202, 44, 36 L.Ed. 942 146 U.S. 13 S.Ct. judicial notice of the fact that land values Burnside, Barron v. (1892); 121 U.S. Valley in the Salt Lake have increased sub Doyle v. (1887); 30 L.Ed. 915 S.Ct. stantially during period question be Co., 94 U.S. Ot (4 Insurance Continental general economy inflation in the cause of Co. (1876); Insurance to) 24 L.Ed. 148 great population, increase in the ac and a Morse, (20 Wall.) 22 L.Ed. 87 U.S. companied by an increase in demand for sum, a violation it would be *14 County. in Lake Those factors land Salt supremacy clause of United of the difference require the conclusion that penalize to a landown Constitution States property in the valuation of defendants’ compensation” because right “just er’s to date of of summons between the service right, and it of a federal of the assertion right to condemn the date when the wholly and invidi unreasonable would significant. Fur is evident and was settled assertion of a state penalize to ous thermore, on the interest should be allowed somebody else asserted right because Fribergs’ from the date of the aban award if the right, would be the case federal as City South property. donment of the penalized because of the sec were Utah, 621 P.2d 1254 Fujiki, Ogden v. federal lawsuit. ond short, Fribergs’ right just com- In to appel- and remanded. Costs to Reversed they

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