Appeal from an award by jury verdict for drainage water alleged to have been taken in a condemnation action by the State where defendants were awarded $75,000 for taking and severance damages, *20excluding' the instant claim, incident to a highway project, where the drainage phase was separated by stipulation, for future adjudication. The later award by the court, sitting without a jury, of $38,800 for such drainage on account of waters interfered with, is attacked on this appeal, and we reverse the trial court’s decision in this respect. No costs to anyone.
Defendants and their predecessors installed drains in the subject property to get rid of water which was soaking the land, which drainage installation, at their own expense, was designed to rid the land of undesirable water in order to make the Tanner tract productive rather than useless, — and not to put the water to a beneficial use in the appurtenant land. The Tanner interests were awarded some kind of rather indefinable rights in this unwanted and troublesome water in the also troublesome decree1 so that the Tanner interests actually sold the water for a use by somebody else, at a point of diversion about five miles upstream. Suffice to say that the fact that the Tanner interests claimed and sold waste water doesn’t prove much, and especially with respect to ownership, the decree to the contrary notwithstanding, which we think not apropos here. We think the damages awarded for loss of water collected in these drains are not com-pensable, because: 1) They are based on speculation; 2) are consequential, and 3) are subject to the defense of sovereign immunity.
As to 1) : The drains were installed by defendants to rid themselves of the water in order to preserve the value of their land, and not to collect for sale to others. Utah should not have to subsidize such sale, or the loss of it. The record reveals that, except for a decree recognizing the drains and the waste water therein and permitting its diversion about five miles upstream, it appears that the subdividing of property upstream, making it residential instead of agricultural, would diminish the seepage flow that appears to have been feeding the drains rather than from a flow of established aquifers. Because of this uncertain circumstance, the damages in this case become speculative, which are not assessable by a jury or other arbiter of the facts.
As to 2): Except for some doubtful impact of State v. Rohan, 26 Utah 2d 202, 487 P.2d 857 (1971), on the previously established concept of immunity from payment for consequential damages, precedent in this State certainly would treat this *21waste water as being non-compensable on the basis of consequentiality and non-sev-erability. To sanction any other result under the water cases preceding this one, would be something akin to saying that one living on a freeway would have a vested right to have people throw beer cans on his property in perpetuity so that he could sell them for recycling purposes.
As to 3): Defendants’ claim obviously is not structured on a taking of land for a public purpose. It appears to be a tort claim for interfering with some drains or interfering otherwise in a diminution in the flow of waste water. Again I refer to Mr. Justice Ellett’s concurrence. The State in this suit did not ask to take any water or water rights for a public purpose at all. The best defendants can urge here, besides such interference, would be on the basis of severance damages. Both parties seemed to have recognized that this theory was not tenable since the matter of damages for the actual taking and for severance damages were resolved and no one is contesting those matters, — the parties in apparent agreement recognizing the difference with respect to the waste water by stipulating that this question could be resolved not by the jury as the other issues were, but by the court in a separate trial.
The drains were installed, not to use the water beneficially on the land, but to get rid of it so the land could be used beneficially, — ultimately to sell it, as trash, so to speak, to someone else who could use it one way or another. The sale of this water well may have been accomplished for a purpose that did not even resemble a beneficial use thereof. The claim for compensation for this waste water being one sounding ex maleficio, and not on appropriation for beneficial use upon the claimant’s land, defendants, if they had any claim at all, should have pursued an action under the Utah act having to do with waiver of immunity, which was not done, and which should resolve this case into a remand with instructions to vacate the judgment relating to this waste water. In this respect, I refer again to Mr. Justice Ellett’s concurrence.
. Provo Reservoir Co. v. Provo, Case 2888 Civil, 4th Judicial District Court, in and for Utah County, State of Utah (1921).