(dissenting):
The plaintiff herein sued the State of Utah claiming damages for a breach of contract which caused the plaintiff a loss of business profits in the amount of $125,000. Gorgoza, the plaintiff, owned and operated a ski and toboggan resort. The state condemned a portion of the Gor-goza land in another case in order to construct a segment of the Interstate 1-80 freeway.
In order to facilitate the trial of the condemnation suit, the parties stipulated that the court might make an Order of Immediate Occupancy onto the land, provided that it contained certain provisions desired by Gorgoza, to-wit:
(a) The State shall provide reasonable access to the remaining property not being condemned so as not to interfere with the commercial and recreational activities being carried on upon the remaining property.
(b) The State shall, prior to removal or destruction of the fence make adequate provisions for another fence with gates or cattle guards at not less than three points to be designated by Gorgo-za.
(c) The State will be restrained from hindering or interfering with the use, occupation, and enjoyment by Gorgoza of their remaining property.
On October 14, 1972, Gorgoza caused an Order to Show Cause to be issued by the court in the condemnation proceeding requesting the Order of Immediate Occupancy to be set aside, or to show why Gorgoza might not have the right in an independent action to assert its claim for damages without being charged with the defense of res *417judicata or other defense which might arise because of the entry of judgment in the case.
The attorneys for the parties then stipulated that the court might make the following order which was signed by the judge on October 27, 1972:
IT IS HEREBY ORDERED that Defendants be and they are hereby given leave to assert and file their claims for damages arising out of an alleged breach by Plaintiff of the provisions of the Order of Immediate Occupancy heretofore entered herein on the 7th day of June, 1971, independent of this action and that said claims of Defendants shall not be barred by the defense of res judicata or any other defense which might arise by reason of the pending of or entry of judgment in this action.
The trial of the condemnation matter was had to the court but we do not have in the record before us any information as to the amount of money paid for the land taken or for the severance damages sustained; however, since no complaint therefor is made in this instant matter, it must be presumed that the matter of value and severance damages was properly concluded in the prior trial.
The main thrust of plaintiffs’ complaint in the instant matter is that it lost profits because the State breached its “contract” in connection with the Order of Immediate Occupancy. By the stipulation of facts filed herein, the Order for Immediate Occupancy required the State to provide Gor-goza and the general public with reasonable access to the remaining property so as not to interfere with the commercial and recreational activities being conducted thereon, nor to discourage the general pub-lie from frequenting and going upon said property.
The above has the appearance of an order of the court, enforceable by contempt, rather than a contract. The fact that counsel for the State stipulated that the order could be entered does not change it in any particular. However, even if we assume that the State agreed to provide Gor-goza and the public with reasonable access, there is no record before us to show that a reásonable access was not afforded. There is no claim made that access was ever denied. What does appear to be the gravamen of the complaint is that during construction of the freeway there were times when there was some inconvenience and difficulty in making ingress and egress to and from the resort.1 While a condemning authority will be liable for entirely depriving a landowner of all access to his property, there is no liability for hardship or difficulty in using the access if it is merely a temporary interference during reasonable construction time.2
Gorgoza also wishes the State to pay for the toboggans and equipment as well as for other personal property used in connection with the “runs”. The cost of these items and the expense of removing them cannot be recovered from the State in this case.3
If Gorgoza lost profits from its business because of the condemnation proceeding or because of temporary deprivation of access during the construction period, it cannot recover them from the State.4
Gorgoza also claims damages because of defects in the highway. The matter seems to be based on muddy lanes inside its own land in which some cars were stuck temporarily. This is not the kind of defect in the highway wherein the State waives im*418munity from suit5 in case damages are occasioned. The defect, if any, was on the private land of Gorgoza. The reasoning seems to be that the State breached a “contract” to furnish reasonable access and, therefore, if some employee or patron had difficulty in arriving at the ski lodge, the State must pay for it.
The trial court was of the opinion that the attorney for the State could not bind the State to the purported contract and he therefore granted summary judgment to the State. Certainly the attorney could not bind the State to pay for those items claimed in the lawsuit which are not recoverable at law. The $125,000 sought by Gorgoza is, in my opinion, not recoverable, and for that reason I would affirm the judgment given.
HENRIOD, C. J., concurs in the views expressed in the dissenting opinion of EL-LETT, J.
. It appears from the brief of counsel for the State that the construction of the freeway began in the area in August, 1971, and by November 15, 1971, the right-of-way fence was constructed across the Gorgoza frontage and three access openings had been left in locations designated by the landowners; and that the approach from the freeway to the property line had been paved.
. 2A Nichols on Eminent Domain, 3rd Ed., Sec. 6.4442(2).
. Utah Road Commission v. Hansen, 14 Utah 2d 305, 383 P.2d 917 (1963).
. Mitchell v. United States, 267 U.S. 341, 45 S.Ct. 293, 69 L.Ed. 644 (1924).
. 63-30-8, U.C.A., 1953, Repl. Vol. 7A.