(dissenting) :
I respectfully dissent. This case is practically identical to State By and Through State Road Commission v. Williams which we recently decided in 22 Utah 2d 331, 452 P.2d 881 (1969), wherein I thought we *207made it crystal clear that noise does not damage the realty, hut only the eardrums, and merely represents consequential damages and hence not a factor in determining compensability in eminent domain cases. The instant case says it is such a factor when it permits an appraiser to take into consideration a noncompensable item such as noise in his appraisal of damage to the land itself. The instant case, although quoting it, flies in the teeth of the Williams case and its reasoning, in my opinion, and effectively destroys what I thought was its basic concept, opening up a Pandora’s Box for recovery of consequential damages. There is absolutely no reason why noise cannot now represent 25 per cent or 50 per cent of the compensable damages.
Since penning the above paragraph, Mr. Justice Ellett has jerked the rug out from under me with respect to my understanding of the Williams case. In an opinion concurring with the main opinion here, he says he does not retreat from the Williams case, but later on says that “market value will reflect the effect of noise, [etc.] * * *” and they “are factors which are bound to have an influence on what a willing buyer will pay,” and that the con-demnee “should be paid the fair market value of the land taken and for any diminution in the fair market value of the remaining land.”
This all sounds to me like noise is com-pensable if it is a factor in determining fair market value after the taking, in light of the established principle that damages in eminent domain cases is the difference between the fair market value before the taking and the fair market value after the taking.
As I see it, both the author of the main opinion and Mr. Justice Ellett are saying that “noise is a factor in determining fair market value and hence compensable, — but we have to say that it isn’t compensable for the record.”
The trick is for the condemnee’s attorney to have his appraiser testify about the noise, whence the noise factor becomes compensable, and make sure not to talk about or ask for noise damages as a “separate factor.”
The seeming inconsistency and illogic of the main opinion and Mr. Justice Ellett’s concurrence drive me up the drapes or my slide rule is bent.
CALLISTER, C. J., concurs in the dissenting opinion of HENRIOD, J.