Springville Banking Co. v. Burton

• Decision Date: 01 February 1960
• Docket Number: No. 9066,9066
• Parties: d 100 SPRINGVILLE BANKING CO., Plaintiff and Appellant, v. C. Taylor BURTON et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 157

349 P.2d 157

10 Utah 2d 100

SPRINGVILLE BANKING CO., Plaintiff and Appellant, v. C. Taylor BURTON et al., Defendants and Respondents.

No. 9066.

Supreme Court of Utah.

Feb. 1, 1960.

Fabian, Clendenin, Mabey, Billings & Stoddard, Bryce E. Roe, Salt Lake City, for appellant.

Walter L. Budge, Atty. Gen., Franklyn B. Matheson, Asst. Atty. Gen., for respondents.

HENRIOD, Justice.

Appeal from a dismissal of plaintiff's mandamus action which sought to require members of the State Road Commission to initiate eminent domain proceedings to assess damages allegedly caused by impairment of ingress to and egress from plaintiff's property. Affirmed. Costs to defendants.

Plaintiff owns a lot and building on the East side of Main Street at Seventh South in Springville, Utah. Main Street is a segment of a transcontinental highway. It runs North-South. The Commission placed a concrete island in the middle of Main Street, eliminating U-turns and left turns, and denying access of southbound Main Street traffic to plaintiff's property. The official project map indicates, however, that a new diversion highway permits southbound traffic seeking plaintiff's property to travel about 1400-1500 feet further than it was wont to do before.

Plaintiff seeks no removal of the island, but damages for interference with access to the property. It claims 'damage' for which it urges compensation should be paid under Constitutional provisions. ¹ This amounts to an asserted constitutional right to be damaged.

Plaintiff concedes that in cases like this the State cannot be sued for lack of consent; ² that an action will not lie against the Road Commission; ³ and that damages are not assessable against the Commission members individually. ⁴ It is further conceded that the Commission acted reasonably, plaintiff alleging in its complaint that:

'The impeding of plaintiff's ingress and egress was determined by the defendants to be necessary for the proper and skillful construction of a highway for the use of the public, and the highway was skillfully and properly constructed.'

This concession that there was no unreasonable exercise of the police power provokes two questions: 1) Can plaintiff, employing the extraordinary writ of mandamus, compel the state to pay damages, when, because of sovereign immunity, it could not have done so in a direct suit against the State or the Road Commission? and 2) Was the damage here compensable in any event?

As to 1): We believe and hold that the procedure chosen by plaintiff was an effort indirectly to do that which repeatedly we have held could not be done directly, which is dispositive of this case on that ground.

As to 2): In this area of the freeway, citizens must yield to the common weal, albeit injury to their property may result. We espouse the notion that if the sovereign exercises its police power reasonably and for the good of all the people, when constructing highways, consequential damages such as those alleged here, are not compensable. ⁵ On the other hand, if public officials act arbitrarily and unreasonably, causing, for example, total destruction of the means to get in and out of one's property, without any reasonable justification for doing so in the public interest, in a manner that imposes a special burden on one not shared by the public generally, ⁶ principles of equity no doubt could be invoked to prevent threatened action of such character or to remove any instrumentality born of such conduct. Plaintiff did not allege or assert anything akin thereto.

The complaint makes it obvious no such case exists here. Access has not been denied. Interfered with, it is true, but in our opinion to no unreasonable extent. Southbound travelers seeking plaintiff's property have to travel but a quarter mile further to reach it. The island concededly was necessary and desirable for safety reasons and to effect traffic control. This case more nearly is akin to Robinett v. Price, ⁷ where we held a much more circuitous route gave rise to no claim for damages where one end of a road was closed.

If every abutter on a highway or street where proper authority reasonably has eliminated left or U-turns, could obtain damages incident to such eventuality, the result is obvious: Highways would remain unmarked because of the prohibitive cost involved in payment of damages to owners on both sides, or else they would be bypassed entirely as was the case in State by State Road Commission v. Rozzelle, ⁸ which accomplishment we approved. Highways would become increasingly more dangerous, what with the rapidly increased traffic that has evolved in the past years and which clearly will increase further. Thousands of miles of highway would be left with no traffic control. No city could afford the luxury of a one way street lest it was of that type in the inception. Exigencies of the times require a practical, sensible approach to the limited-access highway problem, with the general public good being the primary consideration in determining each case as it arises, every case being different.

We believe, conclude and hold that the plaintiff here had no cause of action by way of mandamus, and that any damage provable here must yield without compensation in view of the obvious and admitted necessity for dividing the subject highway in this case.

CROCKETT, C. J., and CALLISTER, J., concur.

McDONOUGH, J., concurs in the result.

WADE, Justice (concurring with the result).

I concur with the result reached in the prevailing opinion on the ground that plaintiff has failed to show any compensable damage to their property. I do not agree that if such damage were shown sovereign immunity is applicable to this case.

I disagree with appellant that if compensable damage were shown injunctive relief should be granted to force the state to bring a condemnation suit for I think the state consented to a direct suit by the appellant, if such showing were made, by Section 22 of Article I of our Constitution, which provides that '(P)rivate property shall not be taken or damaged for public use without just compensation.' To hold otherwise in some cases allows the state to clearly violate the above constitutional provision; in others it causes a multiplicity of actions and creates no end of doubt and uncertainty. This conclusion is supported by the great weight of authority.

That section makes no distinction between property taken and property not taken but only damaged, nor does it prohibit either taking or damaging private property for public use, but it requires just compensation for either the taking or damaging of private property for public use. It is applicable to every case where the law of eminent domain could be exercised but is not limited to such cases. It requires just compensation where private property is taken or damaged to an actionable extent for public use. It is not limited to private persons, firms or corporations but applies to the State, the Legislature, and all Boards, Commissions, Governmental agencies and subdivisions thereof, and is wholly inconsistent with the doctrine of sovereign immunity from a suit to recover such just compensation. In discussing this problem it has been well said:

'* * * 'Immunity from suit' cannot avail in this instance, and if no statute exists, liability still exists, because as to this provision the Constitutions are self-executing.

'To hold otherwise would be to say that the Constitution itself gives a right which the Legislature may deny by failing or refusing to provide a remedy. Such a construction would indeed make the constitutional provision a hollow mockery instead of a safeguard for the rights of citizens.

'No court has ever applied the doctrine of immunity from suit to cases like the one at bar, nor can they, for to do so would absolutely annul the provision.' ¹ (Emphasis ours.)

This conclusion is absolutely required by that section of our Constitution. It is clear, as we held in State by State Road Commission v. District Court, Fourth Judicial Dist., ² that the mere right of a party whose property has been taken to present his claim to the Board of Examiners ³ is not due process of law.

In the Fourth District Court case, ⁴ Judge Hoyt, in the prevailing opinion, said the State cannot be sued 'without its consent and that consent is not ordinarily implied,' but that there is at least one case which holds such consent is implied from a constitutional provision similar to Section 22, supra, and Mr. Justice Wolfe in dissenting in that case indicated that there was only one case ⁵ which has so held. The impression created by these statements that few cases have so held is erroneous for practically all of the cases dealing with this problem hold that by such provision the State consents to being sued for such compensation without any implementing statute. ⁶

In Johnson v. City of Parkersburg, supra, 16 W.Va. 402, 422-423, the Supreme Court of West Virginia in holding that a constitutional provision similar to our Section 22, supra, is as effectual consent to being sued as an express statutory enactment would be, said:

'I have nowhere seen it contended that a clause of a Constitution, which declares that 'private property shall not be taken for public use without just compensation' requires legislation to put it in force. It has always been regarded as self executing. It is a limitation, not only upon the rights of individuals and corporations, but also upon the legislatures of the states.'

Chick Springs Water Co. v. State Highway Department, supra, 157 S.E. 842, 847, 848, is a leading case on this subject and the one quoted from above. It also holds that the State by such constitutional provision without implementing statute has consented to being sued. There the relocation of a state highway caused periodic flooding of plaintiff's land. In reversing the trial court's dismissal of the action on account of sovereign immunity, the Supreme Court of South Carolina ...