State Ex Rel. Road Commission v. Parker

368 P.2d 585, 13 Utah 2d 65, 1962 Utah LEXIS 147

• Court: Utah Supreme Court
• Decided: January 31, 1962
• Docket: 9489
• Status: Published

Opinions

HENRIOD, Justice.

Interlocutory appeal by the State from a denial of its motion to dismiss defendant Sine’s counterclaim in a condemnation suit by the State to acquire property for an interstate highway construction project. Reversed, with no costs awarded.

The subjoined sketch represents the overall property of Sine on the one hand and that described m the. condemnation complaint.¹ It shows that Sine owned two tracts, “A” and “B,” separated by a highway used to reach local streets and then on to California. The small shaded area included in “B” was the only property sought by the State and the only property described in the complaint.

It is conceded: That “A” is a motel property, having no economic or functional connection with “B,” which latter was used strictly as a private residential property; that “A” was not the subject of condemnation. However, Sine urged that “A” was damaged by construction of the interstate highway, and that such damage was com-pensable in this eminent domain proceeding. He says the damage was an interference with light and air, subsurface pressure, sewer facilities and access, with a consequent loss in profits incident to the motel’s operation.

After the State filed its action, Sine sued the contractor doing the work in constructing the North-South highway, elevated on stilts to cross over the then existing East-West highway leading to California, to enjoin further construction already begun, and for damages arising out of the alleged interferences mentioned supra. A motion to dismiss that action was granted by the trial court on the asserted basis that Sine could litigate the issues in the State’s condemnation proceeding. The State, no party to that action, is not bound by that ruling, nor are we.²

In a counterclaim filed in this case after the dismissal in the other case, Sine says that, 1) since he is a party to this action, he is entitled to damages as to “A,” although it was not described in the State’s complaint, nor was it the subject of condemnation; 2) that the counterclaim was proper under our rules of procedure, and 3) that the damages alleged are compensable in the instant action.

Contention 2) relates to procedure and joinder of parties. It does not go to the question of whether Sine has a compensable claim against the State, and therefore, for the purposes of this case, .need not be canvassed, but may be conceded as having merit.

Contentions 1) and 3) may be viewed in the aggregate, since both pose the same fundamental question whether the State is suable for consequential damage to property not sought for condemnation.

On numerous occasions we have held that such damage is not recoverable because of the State’s immunity. Fairclough v. Salt Lake County,³ a case most similar to this one, is our last pronouncement in this respect. Therein are cited our previous decisions which we are disinclined to reverse. Contrariwise, we consider and hold that the Fairclough case and those cited therein are dispositive here, to which authorities we refer the reader without needless repetition.

As to Sine’s argument that he, being a defendant, may counterclaim and recover, is answerable by the simple and authoritative conclusions that neither under our rules or elsewhere, can a counterclaim-ant cast himself in any other role than that of a plaintiff.⁴ If Sine, as plaintiff, had sued the State in this case, he would have been unable to proceed under the authorities referred to above. Since a counterclaim must be invested with all the requisites of a complaint, it would strain reason to conclude that it would have any attribute that would alter nonresult into result.

If the State were not suable in this case in the first instance, it is not suable by counter-complaint, and we so hold.

McDonough, callister and CROCKETT, JJ., concur.

1 . Title 78-34-7, Utah Code Annotated 1953: “All persons in occupation of, or having or claiming an interest in, any of the property described in the complaint, or in the damages for the taking thereof, though not named, may appear, plead and defend, each in respect to his own property or interest, or that claimed by him, in the same manner as if named in the complaint.”

2 . Taylor v. Barker, 70 Utah 534, 262 P. 266, 55 A.L.R. 1032 (1927), wherein the court said that “The law is well settled that as a general rule a judgment is effective only between the parties to the action and their privies, and that no rights whatever, either in favor [of] or against strangers to the judgment, are acquired, lost, or affected by reason of the judgment.”

3 . 10 Utah 2d 417, 354 P.2d 105 (1960).

4 . Valley Gin Co. v. McCarthy, 56 Ariz. 181, 106 P.2d 504 (1940): “The term (counterclaim) is a general and comprehensive one and may be defined as a cause of action in favor of defendant upon which he might have sued the plaintiif and recovered judgment in a separate action.” Wilson v. Tromly, 404 Ill. 307, 89 N.E.2d 22 (1949); 47 Am. Jur. 736, Sec. 37.