(dissenting).
First, the two points on appeal were to the effect that 1) the state tortiously violated appellant’s property rights and 2) made it impossible to reach its east bank of the canal because of the condemnation.
There is no evidence of mala fides on the part of the state whatever, so that the first point has no merit. As to the second point, without dispute, appellant’s director testified that by traveling I1/2 miles further each way, its company had access to the east bank of its canal, — hence this point on appeal also is without merit. A third point raised in the main opinion for the first time, it appears, is that even though the company had such access, the cost involved in traveling the three miles extra to maintain the canal was a compensable item of severance damages.
State Road Commission v. Utah Sugar Co., 22 Utah 2d 77, 448 P.2d 901 (1968), was and is directly in point, being almost identical factually to the instant case and quite dispositive thereof on principle. The trial court thought so, and refused to make an award for such, cost of travel for maintenance purposes. There was no evidence that the land remaining on the maintenance road itself was damaged.
The only differences between this case and the Sugar case are: 1) That in the latter case it took six miles over a circuitous route to get to the condemnee’s private maintenance road, while here it took but three; 2) that in the Sugar case the private maintenance road ran North and South at right angles to the freeway, while here such road ran East and West but parallel to the freeway; and 3) that in the Sugar case the condemnee had to cross the state freeway at another point to get to its maintenance road, while here the condemnee had to use and cross some city streets to get to its road.
In the main opinion, Mr. Justice Ellett tries to distinguish the two cases with an ipse dixit, asserting that in the Sugar case “Such damages as the landowner there suffered resulted not from the taking but from not being permitted to cross the freeway.” This is not quite true. There was a taking of part of the Sugar Company’s land, which taking was the causa causans of the company’s liability to go across a busy freeway. Had it attempted to do so it would have-had to commit a trespass, so that the taking actually was the cause that required the company to take a more circuitous route,, and the prohibition from crossing the freeway but evidence of that fact. It appears, therefore, that the main opinion simply confuses a cause with inconvenience, — which inconvenience, under the Sugar case, under the principle enunciated in Nichols on *253Eminent Domain and other authorities,1 is not compensable, whether we call such inconvenience the result of “severance” or “consequential” damages. In other words, the authorities assign the necessity of traveling a more “circuitous route” as a noncompensable item in eminent domain litigation. The main opinion cites no authority whatever to the contrary. At the expense of being repetitious, but for emphasis, the principle in Nichols, Eminent Domain, Vol. 4, Sec. 14.1, p. 491, is repeated here:
Inconvenience of travel occasioned by being required to follow a more circuitous route due to a completed highway improvement is not a proper subject for a damage award.
If the majority of the court feels that the cost of traveling three miles further to get to a maintenance road is a compensable item of severance damages because of the inconvenience involved, then, in all consistency, the court should overrule the case of State Road Commission v. Utah Sugar Co. and thus put to rest the matter of inconvenience of a more circuitous route, and unequivocably announce that hereafter such rerouting and the cost thereof, including future maintenance thereof, must be borne by the taxpayer. The court then might well look into the matter of compensability for consequential damages where a citizen, no party to the condemnation, would be required to travel an additional mile and a half to work and back because of the completion of a public highway improvement.
Mr. Justice Callister’s concurrence in the result compounds the error of the main opinion. I have no quarrel with the principle that appellant or any other condemnee in an eminent domain case is entitled to severance damages. But they must be true severance damages, which were not urged or proved here except by way of misnomer. All that plaintiff claimed here was 1) that the state was guilty of tortious conduct, and 2) that plaintiff was unable to reach its canal bank. Both of these contentions were unsupported by any substantial evidence. On the contrary, they were disproved beyond any serious doubt, and the trial court was correct in so finding and concluding. Justices Ellett and Callister simply say that the appellant is entitled to severance damages, but neither one of them can or does point to the record to show why or in what amount, or to any proof thereof. It is simply to give the appellant another whack at this case under an invited new approach, — thus placing this court in the role of advocate and tutor for the appellant. One wonders where, under such procedure, *254litigation should stop, and whether, on a new trial followed by another appeal, this court will supply another unsolicited and unwarranted issue, to appease appellant and appall the taxpayer.
. Nichols, Eminent Domain, Vol. 4, Sec. 14.1, p. 491; Houghs v. Mackie, 1 Mich. App. 554, 137 N.W.2d 289 (1965); State Highway Commission v. Watt, 374 Mich. 300, 132 N.W.2d 113 (1965); State Road Commission v. Utah Sugar Co., supra.