(dissenting):
I dissent upon the sole ground that plaintiffs ought to recover against the State under Section 22 of Article I of the Constitution of Utah pursuant to the doctrine of “inverse condemnation” rather than under the Utah Governmental Immunity Act. This is important to the plaintiffs because of the limitation on the amount they may recover imposed by that Act, even if their damages are found to be far greater.
In taking this position I recognize that the decisions of this court, unless overruled, preclude such result.1 However, I believe the law enunciated in those cases, to the extent that they deny the existence of a constitutional inverse condemnation right of action, independent of legislative enactments or executive grace, does not comport with the great weight of authority throughout the United States.2 For the reasons stated by Justice Wade in his dissent in the Fairclough case,3 and for the reasons advanced by plaintiffs in their briefs, in my opinion such cases should be reconsidered and overruled.
Section 22, Article I, of the Constitution of Utah provides as follows:
Private property shall not be taken or damaged for public use without just compensation. [Emphasis mine.]
The remedy which a property owner prosecutes to obtain compensation under a constitutional provision providing for payment of just compensation when his property has been taken or damages for public use is often referred to in the cases and legal periodicals as “inverse condemnation.” Such actions have also been called “reverse condemnation” an action or claim by reason of “de facto” or “common law taking”,4 or affirmative eminent domain. In such actions the owner whose property is taken or damaged for public use without the institution of a condemnation proceeding, himself takes the procedural initiative by bringing an action for damages.
My research indicates that at least 25 states have constitutional provisions similar to Utah’s 5 and all but three recognize and *1123sanction an inverse condemnation action stemming directly from their constitutions and not dependent upon implementing legislation.6 The state of Arkansas7 and possibly Wyoming and South Dakota are the exceptions. I am convinced by the *1124overwhelming weight of authority that Section 22 is self-executing and that it does not require legislation to give it effect.8 In fact, if legislation were enacted, it is my opinion that the proper inquiry by the courts would then be whether the clear right granted by the Constitution has been abrogated or denied by the legislation.9
. Fairclough v. Salt Lake County, 10 Utah 2d 417, 354 P.2d 105; Springville Banking Co. v. Burton, 10 Utah 2d 100, 349 P.2d 157; State v. Parker, 13 Utah 2d 65, 368 P.2d 585; Holt v. Utah Road Commission, 30 Utah 2d 4, 512 P.2d 658.
. See footnote 6.
. “There are many reasons why I think this decision is wrong: (1) It may cause grave injustice to plaintiffs. (2) It is contrary to Section 22, Article I of our State Constitution. (3) It is contrary to a number of our decisions, which it does not purport to overrule. (4) In none of the Utah cases relied on in the prevailing opinion was the question of whether Article I, Section 22 is self-executing the determining factor. (5) It is contrary to the great weight of authority and the better-reasoned cases. (6) No good reason is pointed out or even suggested why we should revert to this doctrine of sovereign immunity.” Fairclough v. Salt Lake County, 10 Utah 2d 417, 354 P.2d 105.
. 3 Nichols on Eminent Domain, Sec. 8.1(2) at 11 (Rev. 3d Ed., J. Saekman).
. Ala. Art. XII, Sec. 235; Alaska Art. I, Sec. 18; Ariz. Art. II, Sec. 17; Ark. Art. II, Sec. 22; Cal. Art. I, Sec. 14; Colo. Art. II, Sec. *112313; Ga. Art. I, Sec. 3; Ky. Sec. 13: “Taken or applied to public use”; La. Art. I, Sec. 2; Miss. Art. III, Sec. 17; Mo. Art. II, Secs. 20 & 21; Mont. Art. III, Sec. 14; Neb. Art. I, Sec. 21; N.M. Art. II, See. 20; N.D. Art. I, See. 14; Okl. Art. II, Secs. 23 & 24; Pa. Art. I, See. 10: “Taken or applied to public use”; S.D. Art. VI, Sec. 13; Tex. Art. I, Sec. 17; Utah Art. I, Sec. 22; Va. Art. I, Sec. II; Wash. Art. I, Sec. 16; W.Va. Art. III, Sec. 9; Wyo. Art. I, Secs. 32 & 33 ; Ill. Art. I, Sec. 15; Minn. Art. X, Sec. 4.
. ALABAMA: City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682 (1972), “That authority (for citizen to bring suit) has long been determined by the courts of this state to arise from § 234 of the Constitution of Alabama.” ALASKA: State Dept. of Highways v. Crosby, 410 P.2d 724 (Alaska 1966), “Fundamental basis of appellees’ claim for damages is in the constitutional provision mentioned . . . The trial court was in error in failing to recognize the essential nature of this action (inverse condemnation) .” ARIZONA: State v. Leeson, 84 Ariz. 44, 323 P.2d 692 (1958), The Constitutional provision prohibiting taking or damaging of private property without just compensation is self-executing. CALIFORNIA: Granone v. County of Los Angeles, 231 Cal.App.2d 629, 42 Cal.Rptr. 34 (1964), “The effect of Section 14 is to waive the immunity of the state where private property is taken or damaged for public purposes. This liability is imposed by the Constitution and not by statute.” COLORADO: Ossman v. Mountain States Tel. and Tel. Co., 32 Colo.App. 230, 511 P.2d 517 (1973). GEORGIA: City of Atlanta v. Donald, 111 Ga.App. 339, 141 S.E.2d 560 (1965), “The right of a property owner to maintain an action at law for damages arises by necessary implication from the constitutional prohibition against the taking or damaging of private property for public purposes without just and adequate compensation.” KENTUCKY : Dept. of Highways v. Gisborne, 391 S.W.2d 714 (Ky., 1965), Assumes that inverse condemnation action automatically arises from constitution. ILLINOIS: People v. Mt. Vernon, 404 Ill. 58, 88 N.E.2d 45 (1945), the provision of the constitution guaranteeing compensation if property is taken or damaged is self-executing. LOUISIANA: Compass v. Dept. of Highways, 255 La. 422, 231 So.2d 374 (1970), Governmental immunity to suit waived when state takes or damages property. MISSISSIPPI : State Highway Comm. v. Mason, 192 Miss. 576, 4 So.2d 345 (1941), This section is self-executing. MISSOURI: Page v. Metro St. Louis Sewer Dist., 377 S.W.2d 348 (Mo.1964), Constitutional prohibition against taking or damaging private property for public use without just compensation is self-enforcing. MINNESOTA: Lowry Hill Properties v. State, 294 Minn. 510, 200 N.W.2d 295 (1972), “The development of the inverse condemnation concept, with like purposes, a means of circumventing the state’s sovereign immunity from tort claims.” MONTANA: City of Three Forks v. State, 480 P.2d 826 (Mont., 1971), “The effect of Art. Ill, Sec. 14 is to waive immunity of the state where private property is taken or damaged for public purposes.” NEBRASKA: Deitloff v. City of Norfolk, 183 Neb. 648, 163 N.W.2d 586 (1968), Assumes self-execution of constitutional provision. NEW MEXICO : Garver v. Public Service Co. of New Mexico, 77 N.M. 262, 421 P.2d 788 (1966), “The right (to an inverse condemnation action) is clearly conferred by the constitution ...” NORTH DAKOTA: Jamestown Plumbing and Heating Co. v. City of Jamestown, 164 N.W.2d 355 (1969), “Since the Constitution guarantees the right to compensation, this obligation is in effect an implied contract on the part of the state to compensate for the damage which it has caused.” OKLAHOMA: Town of Pittsburg v. Cochrane, 200 Okla. 497, 197 P.2d 287 (1948), No question of right to institute a reverse condemnation suit. PENNSYLVANIA: O’Keefe v. Altoona City Authority, 9 Pa.Cmwlth. 397, 304 A.2d 916 (1973), “When land has been taken without condemnation procedure, the landowner may petition the court for award of damages. TEXAS: City of Abilene v. Burk Royalty Co., 470 S.W.2d 643 (Tex., 1971), Assumes self-execution of constitutional provision. VIRGINIA: Heldt v. Elisabeth River Tunnel Dist., 196 Va. 477, 84 S.E.2d 511 (1954), “This section is self-executing and a landowner whose property has been damaged for public use may recover in a common-law action.” WASHINGTON: Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964), The Washington Constitution affords or provides the basis for compensation when land has been taken or damaged by the state. WEST VIRGINIA: Morgan v. City of Logan, 125 W.Va. 445, 24 S.E.2d 760 (1943), The common-law immunity of municipal corporations for damage has been abrogated by this section. Also, State ex rel. Phoenix Ins. Co. v. Ritchie, 175 S.E.2d 428 (W.Va.1970). Writ of mandamus will lie to compel institution of condemnation proceedings.
. Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98 (1965).
. See note 6.
. See Van Alstyne, Statutory Modification of Inverse Condemnation: The Scope of Legislative Power, 19 Stan.L.Rev. 727, 730 (1967).