Walton v. State ex rel. Road Commission , 1976 Utah LEXIS 967 ( 1976 )

MAUGHAN, Justice

(dissenting).

For the reason I believe appellant’s view to be well taken, I dissent.

Article I, Section 22, Constitution of Utah:

Private property shall not be taken or damaged for public use without just compensation.

This provision is mandatory and prohibitory, and I do not believe the legislature can attach to it a limitation which, in affect, repeals it. In my view, this constitutional right could be lost through laches, but not by what amounts to a legislative amendment.

A further reason why the judgment of the trial court should be reversed is the action does not fall within the governmental immunity act. Section 63-30-6, U.C.A. 1953, provides:

Immunity from suit of all governmental entities is waived for the recovery of any property real or personal or for the possession thereof or to quiet title thereto, or to foreclose mortgages or other liens thereon or to determine any adverse claim thereon, or secure any adjudication touching any mortgage or other lien said entity may have or claim on the property involved.

Plaintiffs here do not seek recovery of any property real or personal, to quiet title to such property, to foreclose mortgages or other liens, to determine any adverse claim, or to secure any adjudication touching any mortgage or other lien, a governmental entity may have or claim upon the subject property. Consequently, the limitation of 63-30-12 is not applicable. The instant matter falls squarely within Hampton v. State Road Commission,¹ and its rule of law should be here controlling.

1 . 21 Utah 2d 342, 445 P.2d 708 (1968).