UDOT v. Boggess-Draper Company

This opinion is subject to revision before final
publication in the Pacific Reporter

2020 UT 35

IN THE
SUPREME COURT OF THE STATE OF UTAH

UTAH DEPARTMENT OF TRANSPORTATION,
Appellant and Cross-Appellee,
v.
BOGGESS-DRAPER COMPANY, LLC
Appellee and Cross-Appellant.

No. 20180262
Heard January 15, 2020
Filed June 11, 2020

On Direct Appeal

Third District, Salt Lake
The Honorable Barry G. Lawrence
No. 090921179

Attorneys:
Sean D. Reyes, Att’y Gen., James L. Warlaumont, Barbara H.
Ochoa, Asst. Att’y Gens., Salt Lake City, for appellant and
cross-appellee

Robert E. Mansfield, Megan E. Garrett, Salt Lake City, for appellee
and cross-appellant

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
and JUSTICE PETERSEN joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is an eminent domain action involving a parcel of
property owned by the Boggess-Draper Company, LLC (Boggess).
In 2009 a portion of that parcel, situated along the I-15 corridor,
was taken by the Utah Department of Transportation (UDOT) in
connection with a project at 11400 South in Draper. In the
litigation that followed, the parties disagreed on the quantum of
damages for the condemned property and on the amount of
severance damages to Boggess’s remaining property. As the
 UDOT v. BOGGESS-DRAPER COMPANY, LLC
Opinion of the Court

litigation proceeded, Boggess eventually sold the remaining
property, which was developed into two car dealerships.
Evidence of this subsequent development was excluded by the
district court on a pretrial motion in limine on the ground that it
was categorically irrelevant to the property’s value in 2009. Citing
Utah Code sections 78B-6-511 and -512, the district court held that
the Boggess property had to be valued as of the date of the taking,
and based only on what a willing buyer and seller would have
known at that time. It thus endorsed a “general rule that a party
may not rely on post-valuation facts and circumstances to prove
severance damages.”
¶2 We reverse. We reinforce the settled proposition that
damages for a taking are to be assessed as of the date of the
taking. And we uphold the general principle that the measure of
damages in a case like this one is market value—what a willing
buyer and a willing seller would consider in a voluntary
transaction. But we hold that there is no categorical rule
foreclosing the relevance of evidence of a subsequent transaction
involving the property in question. And we reverse and remand
for a new trial in accordance with the relevance standard we
describe in greater detail below.
¶3 We also reject Boggess’s position on cross-appeal—its
assertion of a right to an attorney fee award as a constitutionally
required element of its “just compensation” under article I, section
22 of the Utah Constitution. Boggess presents no originalist basis
for its assertion of a constitutional right to attorney fees, and no
adequate basis for overcoming our decision to the contrary in
Board of County Commissioners v. Ferrebee, 844 P.2d 308 (Utah 1992).
We accordingly conclude that it has failed to carry its burden of
persuasion on this point.
I
¶4 This is an eminent domain action filed by UDOT in 2009.
The case involves a portion of a parcel of property owned by
Boggess and taken by UDOT in connection with its widening and
reconstruction of 11400 South in Draper. Boggess sought
compensation for the value of the taken property and severance
damages for harm to its remaining property.
¶5 The case did not go to trial until 2018. By that point
Boggess’s remaining property had been sold and developed into
two car dealerships—in a sale that took place in 2016.

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¶6 Before trial Boggess filed a motion in limine asking the
district court to exclude evidence of the 2016 sale, price, and
subsequent development of its remaining property. The district
court granted Boggess’s motion. It noted that the date of valuation
of Boggess’s remaining property was December 17, 2009—the
date the eminent domain action was filed. See UTAH CODE
§ 78B-6-512(1) (stating that “the right to compensation and
damages shall be considered to have accrued at the date of the
service of summons”). And it concluded that evidence of a later
transaction involving the property was “not relevant to
determin[ing] the value of the property in 2009.”
¶7 The district court cited Utah Code section 78B-6-512 for
the propositions “that only values for the date of valuation are
relevant” to the damages inquiry and “that other later-occurring
facts that might affect valuation should not be considered in
determining valuation.” And it reasoned that allowing the jury to
hear the later sales price could leave the jury “with the impression
that the plaintiff has been fully compensated.” For these reasons,
the district court held that all evidence had to be presented
through the lens of what a willing buyer and seller would have
known, or could have predicted, as of the valuation date. And it
granted Boggess’s motion on this basis, while qualifying that if
Boggess opened the door and made post-valuation-date facts
relevant, UDOT would have the right to respond at trial.
¶8 In the course of the trial both parties put on experts to
opine on the value of the taken property and on the severance
damage to the remaining property. At various points Boggess’s
counsel and experts made statements relating to the remaining
property’s development potential and value 1 —comments that
prompted claims by UDOT that Boggess had opened the door to
post-valuation-date facts under the district court’s order. But each
time the district court declined to allow UDOT to bring in
evidence of the 2016 sale, reasoning that any probative value
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1 Boggess’s experts stated, for example, that the property’s
“highest and best use” had been “degraded” due to reduced
access and increased commuter traffic from the project; testified
that an aerial photograph of the property pre-dating its
development showed the area “just all what it looks now”; and
asserted that Boggess “basically had to sell the property for less
than what it was before.”

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would be substantially outweighed by undue prejudice under
Utah Rule of Evidence 403.
¶9 At the close of trial the court issued an instruction telling
the jury to disregard “any reference in the evidence to the
property’s value at some later point in time or any reference to
any subsequent sale or development of the property.” The
instruction also warned that “[f]ailing to do so might produce a
verdict which is not based on the evidence in this case.” Under
this and other instructions, the jury entered a verdict awarding
Boggess over $1.7 million—an amount encompassing its
determinations of the fair market value of the taken property and
severance damages to the remaining property.
¶10 Boggess later filed a motion requesting an award of its
costs, expenses, and attorney fees incurred in the proceedings—
based on article I, section 22 of the Utah Constitution. The district
court denied the motion, citing Board of County Commissioners v.
Ferrebee for the proposition that “just compensation” under article
I, section 22 of the Utah Constitution refers to damages for the
value of taken property and does not encompass a right to recover
costs and attorney fees. 844 P.2d 308, 313–14 (Utah 1992).
¶11 UDOT filed this appeal, asserting that the district court
abused its discretion in refusing to admit evidence of the 2016 sale
and subsequent development of the property. Boggess filed a
cross-appeal, contending that the district court erred in denying
its motion for an award of costs and attorney fees under the
Takings Clause of the Utah Constitution.
II
¶12 Three questions are presented for decision: (a) whether
the district court erred in granting Boggess’s motion in limine on
the basis of a blanket rule barring “post-valuation facts and
circumstances to prove severance damages”; (b) whether it erred
in rejecting UDOT’s assertion that Boggess opened the door to the
admission of post-valuation-date evidence through the assertions
of its counsel and experts at trial; and (c) whether it erred in
denying Boggess’s motion for an award of costs and attorney fees.
We reverse on the first point, decline to reach the second, and
affirm on the last.
A
¶13 Prior to trial the district court granted the Boggess motion
in limine on the basis of a categorical rule prohibiting evidence of
any sale or development of property after the date of its taking.

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And it rooted this rule in both the governing provisions of the
Utah Code and controlling case law.
¶14 The district court found in Utah Code section 78B-6-512 a
“law and policy that only values for the date of valuation are
relevant.” It thus deemed the statute to establish a rule that
“later-occurring facts that might affect valuation should not be
considered in determining valuation.” The district court also
invoked case law in support of its rule. It cited Redevelopment
Agency v. Mitsui Investment Inc. for the “general rule” that
“ordinarily evidence of subsequent occurrences is not
admissible.” 522 P.2d 1370, 1372 (Utah 1974).
¶15 We view the matter differently. We agree, of course, that
the date of valuation is the time of the taking. But we find nothing
in the code or in our case law to support the categorical rule
endorsed by the district court. So we reverse its decision granting
the motion in limine filed by Boggess.2
¶16 In the paragraphs below we first set forth the basis for
our conclusion that the district court’s categorical rule is contrary
to the terms of the Utah Code, as informed by our rules of
evidence. Then we establish that our case law is consistent with
this view. And we close with the conclusion that the decision
granting the Boggess motion in limine was a prejudicial one
entitling UDOT to a new trial.3

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2 In so holding we reject Boggess’s assertion that UDOT failed
to preserve its position on this point. UDOT opposed the motion
in limine on the ground that evidence of the 2016 sale and its price
was relevant to establishing the remaining property’s highest and
best use and to undermining the Boggess experts’ assertions about
physical attributes of the property. And that opposition was
sufficient to preserve the position advanced by UDOT on this
appeal.
3 See State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (An
erroneous decision to admit or exclude evidence “cannot result in
reversible error unless the error is harmful.”); see also State v.
Powell, 2007 UT 9, ¶ 21, 154 P.3d 788 (An error is harmful if “our
confidence in the verdict is undermined” by it. (Citation
omitted)).

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1
¶17 The governing statutes provide for just compensation for
property taken or damaged based on market value at “the date of
the service of summons.” UTAH CODE § 78B-6-512(1). They also
state that a jury “may consider everything a willing buyer and a
willing seller would consider in determining the market value of
the property.” Id. § 78B-6-511(2)(a).
¶18 The code thus establishes the date for measuring the
market value of taken property. See id. § 78B-6-512(1) (stating that
the “value” of property at the date of the summons “shall be the
measure of compensation”). But it does not speak to the categories
of relevant evidence that may be considered in assessing that
value as of that date. 4 Evidentiary relevance is not a statutory
matter. It is a question governed by our rules of evidence.
¶19 Our rules set a low bar for relevance. Evidence is relevant
if it has “any tendency to make a fact” “of consequence in
determining the action” “more or less probable than it would be
without the evidence.” UTAH R. EVID. 401 (emphasis added). And
evidence of a sale or other development after the date of valuation
may at least sometimes speak to the market value of the property
on an earlier date.
¶20 A post-valuation-date sale or development of property
may be relevant to the extent it aids the factfinder in checking
assumptions about the development potential of the property in
question—assumptions made in assessing the value of the
property on the valuation date. As a leading treatise puts it,
evidence of subsequent development may not be direct evidence
of property value on an earlier date, but it may still be “useful” in
“confirm[ing]” or undermining “the expectations, as of the date of
taking[,] of a willing buyer.” 4A NICHOLS ON EMINENT DOMAIN

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4 As Boggess points out, Utah Code sections 78B-6-512(2)
and -512(3) do speak to the relevance of certain kinds of post-
valuation-date evidence. See UTAH CODE § 78B-6-512(2)
(mitigation by the condemnor “after the date of the service of the
summons” may be considered); id. § 78B-6-512(3) (improvements
by the property owner “subsequent to the date of service of
summons may not be included in the assessment of compensation
or damages”). But neither of these sections speak to a general rule
about the relevance of post-valuation-date evidence.

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§ 14A.04[2][b]. Post-valuation-date evidence, in other words, may
establish real-world “[e]xperience” that can “correct [an]
uncertain prophecy” that assesses value without the benefit of
such after-acquired evidence. Id.
¶21 Evidence of market value on the date of the taking is
often based on predictions about subsequent events, including the
development potential of the property in question. And where
one party is permitted to put on valuation evidence rooted in
expectations of development potential, it makes little sense to
conclude that the other party’s evidence of actual property
development is categorically irrelevant. 5 Where the property is
developed post-taking, that may inform a factfinder’s assessment
of development potential, and undermine expressed concerns
about a lack of access to the property or other barriers to
development.
¶22 The district court itself effectively conceded this point
when it acknowledged that “if the parties looked at comparable
sales later in 2010, when the property retained essentially the
same character as in December 2009, those facts might be relevant
to establish the valuation in 2009.” To push the point a step
further, surely a sale of property the day after the taking would be
highly probative of the property’s value on the valuation date.
And that further undermines the notion of a categorical bar on the
admissibility of post-valuation-date evidence.
¶23 We are not suggesting that a post-valuation-date sale or
development of taken property yields conclusive evidence of

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5 See, e.g., Georgia-Pacific Corp. v. United States, 640 F.2d 328, 337
n.5 (Ct. Cl. 1980) (using evidence of the sale of remainder property
five years after the valuation date to corroborate and test expert
opinions regarding the expectations of a prospective purchaser
and seller as of the valuation date for future logging efforts);
United States v. Brooklyn Union Gas Co., 168 F.2d 391, 397 (2d Cir.
1948) (admitting post-valuation-date evidence for its bearing on
the prospective value at the time of taking; noting that “evidence
of such actual [development] is useful to support or check the
assumed prospects,” and concluding that “it would seem an eerie
conclusion that a [jury] must resort to guess, closing its eyes to
reality, when its decision must actually be formulated after the
true facts have become available”).

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market value on the date of the taking.6 Nor are we holding that
post-valuation-date developments are necessarily admissible in
evidence. Our holding is limited. We are simply concluding that a
post-valuation-date sale or other development is potentially
relevant evidence, and not subject to a categorical bar under the
code.
¶24 The statutory measure of compensation is market value
on the date of the taking—based on reasonable expectations at that
time. Post-valuation-date developments may potentially qualify as
relevant under our rules of evidence. But such developments may
not be conclusive, as where market conditions have changed
markedly from those expected at the time of the taking. And such
developments may not even be admissible in evidence, as where
the trial court decides that the risk of unfair prejudice
substantially outweighs any probative value. See UTAH R. EVID.
403.
¶25 Neither of these concerns is sufficient to sustain a blanket
rule establishing the categorical irrelevance of post-valuation-date
developments, however. Concerns about unexpected changes in
market conditions can be raised and tested in the crucible of the
adversary system—through dueling experts and otherwise.7 And
trial courts retain substantial discretion under rule 403 and
otherwise to make case-by-case determinations of admissibility.
2
¶26 Our case law is consistent with the above conclusions. We
have broadly held that the fair market value assessment considers
“all factors . . . that any prudent purchaser would take into
account,” “including any potential development” that could
“reasonably . . .be expected.” Weber Basin Water Conservancy Dist.
v. Ward, 347 P.2d 862, 863 (Utah 1959) (repudiated on other
grounds in Redev. Agency v. Grutter, 734 P.2d 434 (Utah 1986))
(emphasis added). And if potential development is relevant, then
actual development may have at least some tendency to inform

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6 See infra ¶ 27.
7 See id. (noting that “change of condition[s] and the general
increase of prices of land and the variation in value of money are
all subject to explanation” at trial by expert witnesses and
counsel).

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the reasonableness of any predictions about potential
development.
¶27 In Weber Basin, we explained that transactions removed in
time from the valuation date may be probative of the market
value on that date. 347 P.2d at 864. Our Weber Basin opinion
considered a sales price from six and a half years before the
valuation date8 because it was “not so remote as to eliminate the
probative value of the price as some evidence to consider in
placing a fair value upon [the] land.” Id. We conceded that “[t]he
more remote the time” of the sale “the less probative value it may
have.” Id. But we held that that goes “to the weight of the
evidence and not its competency or its relevance.” Id. (emphasis
added). We also noted that it is “universally recognized that sales
of the same property at any reasonable time in the past [or future]
is relevant evidence on the issue of present value.” Id. And we
pointed out that “[s]uch sales, when made under normal and fair
conditions, are necessarily a better test of the market value than
speculative opinions of witnesses; for, truly, here is where ‘money
talks’” Id. (emphasis added) (citation omitted).
¶28 The district court claimed to find a contrary principle in
Redevelopment Agency v. Mitsui Investment Inc., 522 P.2d 1370, 1372
(Utah 1974). 9 It cited that case for the “general rule” that
“ordinarily evidence of subsequent occurrences is not
admissible.” But Mitsui is a case about Utah Code section 512(3),10

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8 In Weber Basin the disputed evidence was the property
owner’s own purchase of the condemned land six and a half years
before the valuation date. But the logic of the Weber Basin opinion
extends equally to purchase of condemned land by another party
after the valuation date, as in this case.
9The district court also relied on City of Hildale v. Cooke, 2001
UT 56, ¶ 21, 28 P.3d 697. But Hilldale merely restates the general
rule in Utah Code section 78B-6-512(1)—that “the appropriate
measure of damages is not simply the market value of the land
condemned but the market value at the time it was condemned.”
Id. And that rule is consistent with our holding for reasons
explained above.
10 This is the current citation for the statute discussed in Mitsui
and Cooke, supra ¶ 28, n.9, which has been renumbered since those
cases were decided.

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a provision that deals with improvements by a property owner
“subsequent to the date of service of summons,” and states
expressly that such improvements “may not be included in the
assessment of compensation or damages.” Any “general rule”
stated in Mitsui thus goes only to compensation for improvements
made “subsequent to the date of service of summons,” and not to
the effect of post-valuation-date evidence generally.
¶29 Boggess cites Utah Department of Transportation v. Jones,
694 P.2d 1031 (Utah 1984), in support of the district court’s order.
But Jones is not on point. In that case we upheld a district court’s
decision to admit post-valuation-date evidence under a different
statute—what is now Utah Code section 78B-6-511(1)(b), which
allows evidence of damages caused by “the construction of [an]
improvement . . . proposed by the [condemnor]” related to the
taking of an owner’s property. Our holding in Jones must be
understood in this context. When we upheld the district court’s
decision to admit proposed testimony of post-valuation-date
damage to property stemming from the condemnor’s project on
the taken property, we were not holding that this evidence was
admissible under an exception to a “general rule” that evidence of
post-valuation-date events is ordinarily inadmissible. We were
simply applying a different statute.
¶30 For all these reasons we conclude that there is no “general
rule that a party may not rely on post-valuation-date facts and
circumstances to prove severance damages.” And we thus find
error in the district court’s ruling on Boggess’s motion in limine.
3
¶31 This leaves the question whether the district court’s error
was harmful—whether “our confidence in the verdict is
undermined” by it. State v. Powell, 2007 UT 9, ¶ 21, 154 P.3d 788.
We conclude that UDOT was in fact harmed by the district court’s
error in categorically excluding evidence of the 2016 sale and
subsequent development of the remaining property. And we find
that the error is accordingly reversible. See State v. Hamilton, 827
P.2d 232, 240 (Utah 1992) (An erroneous decision to admit or
exclude evidence “cannot result in reversible error unless the
error is harmful.”).
¶32 The district court’s decision to exclude evidence of the
2016 sale and subsequent property development substantially
affected UDOT’s strategy and presentation at trial. Boggess’s
claim for severance damages was premised on the idea that
UDOT’s taking diminished access to the remaining property and
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increased commuter traffic, undermining its potential for future
development. Its experts went so far as to say that as a result of
the taking access to the property was “basically unusable”
because it was “too steep to drive down” without a “four-wheel
drive truck” and that increased traffic made the property “a place
where it’s much, much, more difficult to . . . travel in and out of.”
¶33 The ruling on the motion in limine hamstrung UDOT in
its attempt to rebut this evidence. So we have no trouble
concluding that our confidence in the verdict is undermined by
the district court’s decision.
¶34 In so stating we are not prejudging the admissibility of
any or all elements of the 2016 sale and development of the
Boggess property.11 That question will be up to the district court
at a new trial on remand. See Weber Basin, 347 P.2d at 864 (noting
the possibility of exclusion of evidence of a sale that “is too remote
in point of time” where “changed conditions have intervened so
that the [district] court thinks the evidence has no probative
value” (emphasis added)); UTAH R. EVID. 403 (evidence may be
excluded where its probative value is “substantially outweighed”
by a danger of “unfair prejudice, confusing the issues,” or
“misleading the jury”). We simply hold that the decision granting
the Boggess motion in limine was reversible error because there is
no categorical rule barring post-valuation-date evidence in a
condemnation proceeding like this one.
B
¶35 Despite its decision granting the Boggess motion in
limine, the district court held open the possibility that Boggess
might open the door to the admissibility of post-valuation-date
evidence during the course of trial. And at various points during
trial the Boggess counsel and experts made reference to the effects
of the UDOT condemnation on access to the remainder of the
Boggess property, and on its potential for future development.
For example, Boggess’s experts testified, as noted above, that the
property’s “highest and best use” had been “degraded” by
reduced access and increased traffic; that a pre-development

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11 We express no opinion, for example, on the question
whether the ultimate sales price in 2016 is admissible on a
rationale consistent with this opinion, or whether it should be
excluded on the basis of a rule 403 balance.

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photo showed the property “just all what it looks now”; and that
Boggess “had to sell the property for less than what it was
before.”
¶36 At these and other similar points UDOT asserted that
Boggess had opened the door to evidence of the 2016 sale and
development of the Boggess property. The district court
disagreed. It rejected UDOT’s various attempts to introduce the
2016 evidence, concluding that any probative value of the
evidence was substantially outweighed by the fact that it would
be “unbelievably prejudicial” under Utah Rule of Evidence 403.
¶37 UDOT challenges these decisions on this appeal. It asks
us to reverse the several decisions made at trial on the
admissibility of the 2016 sale and development of the Boggess
property. But we see no basis for wading into the weeds of these
decisions. We have reversed and remanded for a new trial. And in
so doing we have undermined a central premise of the district
court’s rule 403 balancing—the side of the equation dealing with
probative value.
¶38 At retrial on remand, the district court may be called
upon to make a new set of judgments about the probative and
prejudicial effects of any proffered evidence of the 2016 sale and
development of the Boggess land. But those judgments will turn
on the facts and circumstances of the trial as it unfolds on remand.
And they will be informed by the standard set forth in this
opinion. Nothing more that we could say here will be of any
particular use on retrial. So we leave the matter there.
C
¶39 After trial the district court denied Boggess’s motion for
costs and attorney fees. Boggess rooted its motion in the takings
clause of the Utah Constitution. Citing article I, section 22,
Boggess asserted that the guarantee of “just compensation”
encompasses a right not just to damages measured by the market
value of taken property but also to costs and fees incurred in
seeking such damages. The district court denied this motion
under the authority of Board of County Commissioners v. Ferrebee,
844 P.2d 308, 313–14 (Utah 1992), which held that the
constitutional right of just compensation is limited to recovery for
takings of and damages to property and does not extend to the
costs of litigation.
¶40 Boggess challenges the denial of its motion on
cross-appeal. It asserts that it has a constitutional right to recover

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its costs and fees in addition to its damages for the market value
of its property. And it accordingly urges us to overrule our
decision in the Ferrebee case.
¶41 UDOT resists this argument on its merits. And it also asks
us to affirm on an alternative basis—the existence of a written
stipulation signed by Boggess, in which Boggess allegedly agreed
to pay its own costs and fees incurred in this action.
¶42 We may have authority to affirm on alternative grounds.
See Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225. But we have
no obligation to do so. And we decline to do so here, where
UDOT failed to cite the stipulation in the district court, and thus
deprived us of a record basis for endorsing the proposition that
Boggess’s right to recover costs and fees is clearly foreclosed by
that document.12
¶43 Instead we affirm on the merits. The district court’s
decision was correct under our decision in Ferrebee, which held
that “just compensation” under article I, section 22 of the Utah
Constitution guarantees recovery for takings of and damages to
property, but does not sweep more broadly to cover “costs
incurred in defending a condemnation action.” Ferrebee, 844 P.2d
at 313–14.13 And we find no basis for overruling that decision.
¶44 Our case law identifies a range of factors that we consider
in deciding whether to overrule one of our precedents. See
Eldridge v. Johndrow, 2015 UT 21, 345 P.3d 553. But the threshold
consideration under our doctrine of stare decisis is “the
persuasiveness of the authority and the reasoning on which the
precedent was originally based.” Id. ¶ 22. If we have no basis for
questioning the “reasoning on which the precedent was originally
based,” id., we have no need to consider other factors of relevance
to our stare decisis inquiry.

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12 See Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225 (noting
that an alternative basis for affirmance must be “apparent from
the record”); Francis v. State, 2010 UT 62, ¶ 21, 248 P.3d 44 (noting
that we “may affirm a decision of the district court on alternate
grounds” but emphasizing that “it falls to the party seeking the
benefit of the rule to explain why it is eligible to have the
alternative arguments considered”).
13Ferrebee dealt with appraisal fees, but its rationale applies
equally to other litigation costs and fees.

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¶45 Here, the threshold consideration is dispositive—we see
no basis for questioning our decision in Ferrebee. Boggess’s
challenge to this decision centers on policy concerns—not the
originalist analysis required under our Utah case law.14 Boggess
asserts that a party who is denied recovery for litigation costs and
attorney fees is not ultimately receiving the fair market value of its
taken property because such costs and fees are effectively an
uncompensated transaction cost of a forced sale. This might be
persuasive if we were interpreting “just compensation” in light of
contemporary economics. But that is not the question presented.
The question presented concerns the original, historical
understanding of “just compensation.” And Boggess has not
shown that “just compensation” historically was understood to
extend beyond compensation for the value of property to
encompass indirect costs incurred by the property owner.15 Our
own originalist research, moreover, has identified material that is,
if anything, consistent with Ferrebee.16

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14 See, e.g., State v. Lujan, 2020 UT 5, ¶ 26, 459 P.3d 992
(explaining that “the Utah Constitution is to be interpreted in
accordance with the original public meaning of its terms at the
time of its ratification”); Salt Lake City Corp. v. Haik, 2020 UT 29,
¶ 12, --- P.3d --- (emphasizing that “we seek to ascertain and give
power to the meaning of the text as it was understood by the
people who validly enacted it as constitutional law” (quoting
Richards v. Cox, 2019 UT 57, ¶ 13, 450 P.3d 1074) (internal
quotation marks omitted)).
15 See State v. Stewart, 2019 UT 39, ¶¶ 47–48, 449 P.3d 59 (stating
that a “failure” to present an “originalist analysis” of the Utah
Constitution is a “ground[] for declining to establish a new state
constitutional right” (citing Zimmerman v. Univ. of Utah, 2018 UT 1,
¶ 19, 417 P.3d 78)).
16See, e.g., Kimball v. City of Grantsville City, 57 P. 1, 3 (Utah
1899) (explaining that “[u]nder the power of eminent domain the
owner may be compelled to surrender his . . . property . . . without
any other compensation than the fair market value thereof; and such
compensation, and only such, he is entitled to by virtue of . . . the
constitution”) (emphases added); see also 1 OFFICIAL REPORT OF THE
PROCEEDINGS AND DEBATES OF THE CONVENTION 326–335, 623
(1898) (discussing the Utah takings clause at length, but focusing
(continued . . .)
14
 Cite as: 2020 UT 35
Opinion of the Court

¶46 The Ferrebee court endorsed the “logic” embraced by the
U.S. Supreme Court in interpreting the Takings Clause of the
United States Constitution.17 See Ferrebee, 844 P.2d at 313–14. That
logic, set forth in United States v. Bodcaw Co., 440 U.S. 202 (1979), is
that the historical understanding of “just compensation”
contemplates “compensation . . . for the property, and not to the
owner,” and that litigation costs are “indirect costs to the property
owner” that are “not part of” the “just compensation” for taken
property required under the United States Constitution. Id. at 203
(quoting Monongahela Navigation Co. v. United States, 148 U.S. 312,
326 (1893) (emphasis added)). The Bodcaw opinion acknowledged
that it might be “fair or efficient to compensate a landowner for all
the costs he incurs as a result of a condemnation action.” Id. at 204.
But it held that compensation for such costs “is a matter of
legislative grace rather than constitutional command.” Id.
¶47 This was the basis for the Ferrebee court’s construction of
the Utah just compensation clause. And we see no originalist basis
for concluding that this was error. So we affirm the denial of
Boggess’s motion for fees and costs.
¶48 Boggess’s policy concerns may be grounds for it to seek a
legislative amendment to the Utah Code to establish a broader

(continued . . .)

exclusively on the value of property taken or damaged with no
mention of costs spent litigating the taking).
17Boggess emphasizes that our Utah conception of “just
compensation” could differ from its federal counterpart. But that
does not affirmatively establish that the Utah takings clause
actually encompasses all that Boggess hopes it does. See Lujan,
2020 UT 5, ¶ 49 n.7 (explaining that we may “depart from the
federal formulation if and when we are presented with state
constitutional analysis rooted in the original meaning of the Utah
[Constitution]” (emphasis added)); Alpine Homes, Inc. v. City of
West Jordan, 2017 UT 45, ¶ 17, 424 P.3d 95 (declining to “conduct
an independent analysis of the Utah takings clause” where the
parties “do not undertake an independent analysis of the
language of the Utah provision, cite authority interpreting it, or
otherwise present an independent rationale for a takings violation
as a matter of state law”).

15
 UDOT v. BOGGESS-DRAPER COMPANY, LLC
Opinion of the Court

right to costs and fees in takings cases.18 But they are not enough
to persuade us to set aside our decision in Ferrebee.
III
¶49 There is no categorical rule deeming post-valuation-date
evidence irrelevant to the determination of fair market value
under Utah Code sections 78B-6-511 and -512. Nor is there a
constitutional right to an award of litigation costs and attorney
fees as an element of just compensation. We reverse and remand
for a new trial with these principles in mind.

______________________________________________________________________________
18 Our code already recognizes a right to a fee award in some
circumstances. See UTAH CODE § 78B-6-509(7)(a) (allowing an
award of litigation expenses to the property owner where the
ultimate award of just compensation is greater than the amount
offered in settlement by the property owner); id. § 78B-6-509(8)(a)
(allowing an award of litigation expenses to the condemnor
where the ultimate award of just compensation is less than the
amount offered in settlement by the property owner).

16