Ivers v. UT Dept of Transportation

2007 UT 19
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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James Ivers; Katherine G. Havas; No. 20060061
and P and F Food Services,
Plaintiffs and Petitioners,
v.
F I L E D
Utah Department of Transportation,
Defendant and Respondent. February 6, 2007
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Second District, Farmington
The Honorable Michael G. Allphin
No. 020700665
Attorneys: Donald J. Winder, John W. Holt, Salt Lake City,
for petitioners
Mark L. Shurtleff, Att’y Gen., Brent A. Burnett,
Randy S. Hunter, Asst. Att’ys Gen., Salt Lake City,
for respondent
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 The Utah Department of Transportation (“UDOT”)
condemned a portion of private property for the construction of a
frontage road adjacent to U.S. Highway 89 in Farmington, Utah.
The construction of the frontage road was part of a larger
project to widen and elevate Highway 89. Petitioners James
Ivers, Katherine G. Havas, and P & F Food Services (collectively,
“Arby’s”) sought severance damages for loss of view and
visibility. The trial court granted UDOT’s motion in limine,
precluding Arby’s from presenting evidence of severance damages
to a jury. Arby’s appealed, and the court of appeals affirmed.
We granted certiorari to determine whether article I, section 22
of the Utah Constitution permits claims for compensation and
whether Utah Code section 78-34-10 permits presentation of
evidence of damages arising from an alleged easement for view or
visibility, where the damages to the alleged easement are caused
by construction beyond the boundaries of the landowner’s

1 In addition to the $48,250 compensation originally agreed
upon, UDOT later agreed to pay Arby’s $56,250 in additional
compensation for damages caused by Arby’s inability to comply
with local zoning ordinances due to the condemnation and the
highway project.
2 Arby’s also sought damages for loss of reasonable access
(continued...)
No. 20060061 2
property. We conclude that since the raised highway was not
built on the condemned land, unless the use of the condemned land
was essential to the construction of the raised highway, Arby’s
is not entitled to damages for loss of view or visibility. We
therefore remand for the necessary factual determination.
BACKGROUND
¶2 Arby’s land is located on the northwest corner of what
was the intersection of Shephard Lane and Highway 89 in
Farmington, Utah. In order to decrease the number of accidents,
UDOT planned to eliminate the intersection by elevating Highway
89 over Shephard Lane. In furtherance of this goal, the State
condemned a 0.048-acre portion of Arby’s 0.416-acre lot in order
to build a one-way frontage road parallel to, and connecting
with, the newly widened and elevated highway. UDOT agreed to pay
Arby’s $48,250 for the condemned property.1
¶3 The condemned portion of Arby’s property is located on
the south and east edges of the property, which abut Shephard
Lane and Highway 89 respectively. No portion of the raised
highway, its footings, or its foundation was constructed on the
condemned land; rather, the condemned land was used for the
creation of the frontage road and for improvements to Shephard
Lane.
¶4 Although Arby’s property is adjacent to Highway 89,
access to the property has historically been available only by
means of Shephard Lane, which had intersected directly with the
highway. After the project, Shepard Lane no longer connected
directly to Highway 89; rather, the highway is accessed by
frontage roads one-half mile north and one-half mile south of
Shephard Lane. The elevation of the highway has obstructed both
the view to the east from Arby’s land and the visibility of
Arby’s property from the highway.
¶5 Arby’s sought severance damages, claiming that the
condemnation, and the pursuant loss of view and visibility,
diminished the market value of their remaining land.2 UDOT filed

2(...continued)
to and from its property. However, we did not grant review of
that issue.
3 No. 20060061
a motion in limine. The trial court granted the motion,
concluding that Arby’s was precluded from introducing evidence
of damages because the loss of view and visibility arose from
construction on property not actually taken from them.
¶6 Arby’s appealed the trial court’s decision to the court
of appeals. The court of appeals affirmed, holding that because
the loss of view and visibility was not caused by the severance
or by the construction of an improvement on the land severed,
Arby’s was not entitled to severance damages. We then granted
Arby’s petition for a writ of certiorari.
ANALYSIS
¶7 On certiorari, we review the decision of the court of
appeals and not that of the trial court. State v. Brake, 2004 UT
95, ¶ 11, 103 P.3d 699. Because the issue before this court is a
question of law related to constitutional and statutory
interpretation, we review the court of appeals’ ruling for
correctness. Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 13,
9 P.3d 762. We have jurisdiction pursuant to Utah Code section
78-2-2(3)(a).
¶8 Article I, section 22 of the Utah Constitution
provides, “Private property shall not be taken or damaged for
public use without just compensation.” Utah Code section 78-34-
10 gives a landowner the right to present certain evidence of
damages, including severance damages, to a jury for a
determination of compensation. Section 78-34-10 provides in part
the following:
The court, jury or referee must hear
such legal evidence as may be offered by any
of the parties to the proceedings, and
thereupon must ascertain and assess:
. . . .
(2) if the property sought to be
condemned constitutes only a part of a
larger parcel, the damages which will
accrue to the portion not sought to be
condemned by reason of its severance
from the portion sought to be condemned

3 See 8,960 Square Feet v. Dep’t of Transp. & Pub.
Facilities, 806 P.2d 843, 848 (Alaska 1991) (holding that “loss
of visibility is compensable in an eminent domain proceeding
where the diminished visibility results from changes on the
(continued...)
No. 20060061 4
and the construction of the improvement
in the manner proposed by the plaintiff
. . . .
Utah Code Ann. § 78-34-10 (2002).
¶9 We have held that loss of view is, in certain
situations, an appropriate factor for a jury to consider in
awarding severance damages. In Utah State Road Commission v.
Miya, we held that the “rights of access, light, and air are
easements appurtenant to the land of an abutting owner on a
street,” and that those rights “may not be taken away or impaired
without just compensation.” 526 P.2d 926, 928-29 (Utah 1974).
We further concluded that an owner of land abutting a street
possesses an “easement of view” that may not be taken without
just compensation. Id. at 929. On the other hand, we have never
decided whether a loss of visibility of property from an abutting
road qualifies for severance damages.
¶10 The question we are now faced with is when, if ever, an
impairment of view or visibility is compensable where the
impairment is caused by a structure that is built beyond the
borders of the severed land. In answering this question, we will
address separately Arby’s claims for loss of view from their
property and the loss of visibility of their property.
I. LOSS OF VISIBILITY
¶11 We have not previously addressed whether a landowner
has a protectable property interest in the visibility of his
land. For a point of reference, we look to other jurisdictions’
decisions on the matter. Where government action impairs
visibility but there is no physical taking of land, “the
virtually unanimous rule provides that there is no freestanding
right to be seen, and that the government need not pay
compensation for lessened visibility.” Regency Outdoor Adver.,
Inc. v. City of Los Angeles, 39 Cal. 4th 507, 517-18 (2006).
However, when the impairment of visibility is coupled with a
partial taking of land, as is the case here, there seems to be
little consensus from state to state. While some states
recognize an easement of visibility where an obstruction is built
on the condemned land,3 other states have concluded that

3(...continued)
property taken from the landowner, but not where it occurs due to
changes on the property of another.”). The court of appeals
noted that even under this standard, Arby’s would not have been
entitled to compensation because the obstruction was not built on
the condemned land.
4 Tracy A. Batemen, Annotation, Eminent Domain:
Compensability of Loss of Visibility of Owner’s Property,
7 A.L.R.5th 113, § 2[a] (1992) (“Where part of an owner’s land is
taken for the purpose of a public improvement pursuant to the
power of eminent domain, and the improvement of or on the land
taken results in a loss of visibility to the owner’s remaining
property, some courts have found this loss of visibility
compensable, . . . while others have found such loss of
visibility not compensable.” (citations omitted)).
5 No. 20060061
visibility, by itself, is simply not a compensable property
right.4 On this issue, we can find no generally accepted rule.
We next turn to the statutory and case law of our state.
¶12 Neither the legislature nor this court has recognized a
protected property right in visibility of one’s property from the
roadway. As a result, the court of appeals concluded that Arby’s
was not entitled to present evidence of claimed damage to their
property caused by a loss of visibility of the property. We
agree. In Utah, landowners do not have a protected interest in
the visibility of their property from an abutting road, even if
part of their land has been taken in the process.
¶13 In Utah State Road Commission v. Miya, we concluded
that the “rights of access, light, and air are easements
appurtenant to the land of an abutting owner on a street.” 526
P.2d 926, 928 (Utah 1974). We also concluded in Miya that “[a]
property owner has no property right to a free and unrestricted
flow of traffic past his premises, and any impairment or
interference with this flow does not entitle the owner to
compensation.” Id. Similarly, a property owner has no
recognized property right to free and unrestricted visibility of
his property by passing traffic, and an impairment of that
visibility does not mandate compensation.
¶14 The speculative nature of the damages sought in a claim
for loss of visibility further supports this conclusion. As the
court of appeals correctly noted, a claim for loss of visibility
is essentially a claim for compensation for lost business
profits. Article I, section 22 of the Utah Constitution simply

5 See Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918
P.2d 870, 878 (Utah 1996) (“[T]o create a protectable property
interest, [one] must establish rights more substantial than a
unilateral expectation of continued privileges.”).
No. 20060061 6
does not create a protectable property interest in the mere hope
of future sales from passing traffic.5
¶15 Because property owners have no protectable property
interest in visibility, the trial court was correct in granting
the motion in limine on this issue, and the court of appeals was
correct in affirming.
II. LOSS OF VIEW
¶16 Unlike visibility, existing Utah law does recognize an
easement of view from one’s property as a protectable property
right. Utah Code Ann. § 72-6-117(5) (2001); Utah State Rd.
Comm’n v. Miya, 526 P.2d 926, 928-29 (Utah 1974). Severance
damages are clearly awardable when the state condemns a portion
of land and builds a structure directly on that condemned land,
impairing the view from, and thereby causing damage to, the non-
condemned portion of land. In Utah Department of Transportation
v. D’Ambrosio, we held that severance damages include “those
[damages] caused by the taking of a portion of the parcel of
property where the taking or the construction of the improvement
on that part causes injury to that portion of the parcel not
taken.” 743 P.2d 1220, 1222 (Utah 1987) (emphasis in original).
Similarly, in Utah Department of Transportation v. Harvey Real
Estate, we stated, “Section 78-34-10 gives a landowner the right
to present evidence of damages caused by the construction of the
improvement made on the severed property.” 2002 UT 107, ¶ 10, 57
P.3d 1088.
¶17 We have not previously addressed a case, like this, in
which the land was condemned as part of a single project to build
a structure that would impair the view from the remaining
property, but in which that structure was not built on the
severed land. In this case, the raised highway, which Arby’s
claims damages its view, was not built in any part on the
condemned portion of Arby’s land. Rather, the condemned land was
used for the construction of a small portion of the frontage
road. The frontage road itself causes no damage to the view from
Arby’s remaining land. However, according to the trial court’s
findings, the land was condemned as part of UDOT’s plan to raise
the highway and was therefore condemned as part of a single
project.

7 No. 20060061
¶18 Whether severance damages are awardable hinges on
whether the severance of the condemned property, and the use of
that property, caused damage to the remaining property. Utah
Code section 78-34-10(2) describes severance damages as those
damages “which will accrue to the portion [of property] not
sought to be condemned by reason of its severance from the
portion sought to be condemned and the construction of the
improvement in the manner proposed by the plaintiff” (emphasis
added). This section has no express requirement that the view-
impairing structure be built directly on the condemned land.
Rather, it only requires that the severance damages be caused by
the condemnation of, and use of, the property.
¶19 The court of appeals recognized this important
distinction when it concluded that Arby’s was not entitled to
severance damages because their “loss of view and visibility was
not caused by the severance of its property or the construction
of an improvement thereon.” Utah Dep’t of Transp. v. Ivers, 2005
UT App 519, ¶ 24, 128 P.3d 74 (emphasis added).
¶20 In Miya, Harvey Real Estate, and D’Ambrosio, we
concluded that when the state condemns a portion of land and
builds a view-impairing structure directly on that land, the
damage to the remaining property is recoverable. This is because
when the condemned land is used for the construction of the view-
impairing structure, the damage to the remaining property is
clearly caused by the severance. However, these cases should not
be read, as the State does, to hold that the only situation in
which a partial condemnation can cause awardable severance
damages is when the view-impairing structure is built directly on
the severed land.
¶21 When land is condemned as part of a single project--
even if the view-impairing structure itself is built on property
other than that which was condemned--if the use of the condemned
property is essential to the completion of the project as a
whole, the property owner is entitled to severance damages.
Logically, if the project could not be built without taking the
condemned land, the impairment of view caused by the completion
of the project could and would not have arisen “but for” the
condemnation. This is the very essence of cause. However, if
the project could have been completed without taking the severed
land, the property owner is not entitled to damage to his view
caused by construction that takes place entirely beyond the
borders of his land. Stated another way, the condemned land is
“essential” to the project only if its use is such a critical
part of the project that without the taking, the project could
not have been completed.

No. 20060061 8
¶22 Arby’s asks us to adopt the standard applied by some
other jurisdictions that “where the use of the land taken
constitutes an integral and inseparable part of a single use
. . . the effect of the whole improvement is properly to be
considered” in awarding severance damages. Andrews v. Cox, 29
A.2d 587, 590 (Conn. 1942) (emphasis added). We decline to adopt
the “integral and inseparable” language as our standard, choosing
instead to expressly limit severance damages to situations where
the condemnation and use of the condemned land was essential to
the project. We believe this strikes the correct balance between
the property owner’s rights under constitutional and statutory
law and the state’s interest in its ability to improve the
highway system without being exposed to limitless liability.
This approach also best complies with the express language of
section 78-34-10.
¶23 In this case, a very narrow piece of land was taken to
create a portion of a frontage road. That condemned land appears
to have had a turning lane, curb and gutters, landscaping, and
perhaps a portion of the second of two lanes of the one-way
frontage road built on it. Under our but-for standard, we cannot
say that Arby’s land was, or was not, essential to the project.
This is a factual question as yet left unanswered by the record
before us. Consequently, remand to the trial court for that
factual determination is necessary.
¶24 If the use of Arby’s condemned land was not “essential”
to the project, they are not entitled to severance damages for
loss of view from the property under article I, section 22 of the
Utah Constitution or Utah Code section 78-34-10. If it was,
appropriate damages may be awarded.
CONCLUSION
¶25 The court of appeals correctly concluded that Arby’s is
not entitled to severance damages for loss of visibility. A
property owner does not have a protectable interest in the
visibility of his property from an abutting highway. A property
owner does, however, have a protectable easement in the view from
his property.
¶26 With respect to lost view, severance damages are
appropriate under Utah Code section 78-34-10 where a portion of
property is condemned by the state and the condemnation of that
land causes damage to the noncondemned portion of land. Damage
to the noncondemned portion of land is “caused” by the severance
in two situations: (1) when the view-impairing structure is built
on the condemned land, or (2) when the view-impairing structure
is built on land other than the condemned land, but the condemned

9 No. 20060061
land is used as part of a single project and that use is
essential to completion of the project. The raised highway,
which blocks the view from Arby’s land, was not built on Arby’s
land. However, whether the land taken from Arby’s was essential
to the highway project is a factual matter not yet resolved.
Affirmed in part and remanded for proceedings consistent with
this opinion.
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¶27 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.