(dissenting).
The plaintiff Road Commission seeks to reverse that part of the judgment of the district court in condemnation proceeding which awarded to the defendant Tanner $38,800 for disruption of flow and diminution of water by its construction of a highway known as the “BYU Diagonal” across Tanner’s land between Orem and Provo.
This case was divided into two parts. The first was a jury trial as the value of the defendant’s land taken, together with severance damages, for which defendant *24Tanner was awarded $75,000. Both parties and the trial court realized that there was an unusual situation with respect to the claim of damages for impairment of water accumulations on the defendant’s land and the usefulness thereof. Consequently, the parties agreed upon a separate proceeding to be held subsequent to the jury trial. They signed and filed a stipulation which expressly stated that no evidence concerning any damages “to the water collection and transmission system of defendants and the loss of water resulting from the taking of land and construction of the public improvement . . . ” should be submitted to the jury, but that that matter should be “ . . . reserved for trial to the court, sitting without a jury.”
The jury trial was completed October 23, 1970. Thereafter, on March 29, 1971, counsel for the parties appeared before the court for discussion of the remaining phase of the case. Pursuant thereto a pretrial order as to that phase of the case was signed and entered by the court on April 13, 1971. It recited the previous proceedings, and specifically stated the issues to be tried by the court, including:
Whether the construction of the public improvement damaged the underground water drainage system of the defendants . . . [and]
resulted in a diminution in the yield of water from the defendants underground draining system and
. . . the amount of damage, if any, suffered by defendants from a diminution from the yield of water.
This pretrial order made no mention whatsoever of any contention or requirement that the defendant was obliged to file a claim under the Governmental Immunity Act;1 and the plaintiff Road Commission made no contention or objection in that regard. That phase of this case, which is now here on appeal, was tried entirely upon the issues as stated in that pretrial order. Under those circumstances the Commission should not now be heard to argue that defendant was obliged to file such a claim.2
Even more important than the foregoing is the fact that this case in no sense involves any action commenced by the defendant against the -state of Utah or any agency thereof. It was initiated by the State Road Commission against the de*25fendant; and there is only one subject matter dealt with: The taking of defendant’s land and determining the amount of damages that will provide legitimate and just compensation therefor.
It is conceded that the defendant has been awarded “just compensation for the property taken and some severance damages.” The question here presented relates solely to his entitlement to, and the extent of, further severance damages. Our statute defines this as “the damages which will accrue to the portion not . . . [taken] ... by reason of its severance from the portion . . . [taken] . . . and the construction of the improvement . . . ”3
In determining severance damages, the general rule is that all factors bearing upon the value should be taken into account.4 It is submitted that this would necessarily include the natural accumulation of water on the defendant’s property, and the uses thereof, just the same as if it had had a natural lake, a duck pond, a water hole, or an orchard, or any other such desirable feature integral to the land. On the other hand, it is appreciated that if the matter of concern here were simply a water right of the conventional type, i. e., the right to use water from a canal or other water source, which is severable from the land and salable separately therefrom, it would not be part of the severance damage. But I do not regard that as being the nature of the right involved here. Moreover, the matter of the damages to the defendants’ property relating to the accumulations of water and the uses thereof resulting from the taking of his land and the construction of the freeway was not presented to the trial court as being of the character of a separately owned and salable water right.
From all of the foregoing it seems to me so clear that it should not be subject to doubt or argument that the defendants’ attempt to prove the severance damages here in question is not the character of “an action” against the state which requires notice under the Governmental Immunity Act. To now rule otherwise under the circumstances here shown, where the agreement with plaintiff and the trial court had precluded him from presenting to the jury any evidence of damage caused to his property relating to the accumulation and use of waters, may result in a loss to him *26of at least some damage the jury could otherwise have included in its verdict, and unjustly deprives him of the damages the trial court found in his favor.
I trust that the main opinion will not be regarded as a precedent for what would seem to be its logical conclusion: that a condemnee in such an action, in order to prove his damages for anything other than the land itself, such as his house, barn, garage, millpond, etc., would have to file a claim under the Governmental Immunity Act.
With respect to the plaintiff’s second attack upon the judgment: that the evidence does not support the trial court’s findings, I willingly agree that if the Road Commission’s evidence be accepted in the light favorable to it, it could be regarded as supporting its thesis: that the water for which Tanner claims compensation was mainly irrigation waste waters collected in his drain system, and that the recent diminution in quantity was due to the changing of neighboring agricultural lands to residential rather than to the construction of the freeway. But as we are often obliged to reiterate: this court should not view the evidence according to the desires and objectives of the loser, but should indulge the assumption that the trial court believed those aspects of the evidence favorable to his findings.
On the defendant’s side there was qualified expert testimony that the physical changes brought about by the taking of his land and the construction of the highway resulted in a reduction of accumulations of water amounting to 480 acre feet annually; and that this annual yield of water had a value of up to $75,000. Regarding the basis of the defendants’ rights to these waters : they were recognized and included in a general decree in the case of Provo Reservoir Company v. Provo City, dated May 2, 1921, (2888 Civil). The decree stated in part:
That [Tanner’s predecessor] be given seepage and spring water accumulating and arising upon her land, and collected by her in the drainage system laid upon said land.
Whether the water in question so owned by the defendant came from seepage, natural springs, or what is termed percolating waters in the land, is of no concern to the condemning plaintiff. The defendant is entitled to just compensation for diminution of the value of his property caused by loss of the waters or interference with the use thereof.5
*27The resolution of the conflict in the evidence is shown in the trial court’s findings : that due to the construction of the highway, the annual yield of the defendants’ water decreased 480 acre feet; and in order to negative plaintiff’s contention, he made the further specific finding that:
There were no factors other than the construction of the expressway which would explain the decrease of the yield of water by the said drainage system.
Instead of taking the maximum appraisal of the $75,000, the trial court found that the decrease of the yield of water had caused the defendants damage in the amount of $38,800.
Because in my view there is substantial and credible evidence supporting the findings and judgment, I would not take away from the defendant the damages found by the trial court to be. the reasonable compensation for diminution in accumulations of water on his property under a procedure agreed to by the State Road Commission.
TUCKETT, J., concurs in the views expressed in the dissenting opinion of CROCKETT, J.. See. 63-30-12, U.O.A.1953.
. See Rule 16(5), U.R.C.P., providing for the making of a pretrial order which “. . . when entered controls the subsequent course of the action . . .” An analogous case, Rumsey v. Salt Lake City, 16 Utah 2d 310, 410 P.2d 205, where the city had similarly stipulated to issues, held it could not thereafter raise the issue of governmental immunity.
. Sec. 78-34-10(2), U.C.A.1953.
. State Road Commission v. Wood, 22 Utah 2d 317, 452 P.2d 872; State Road Commission v. Woolley, 15 Utah 2d 248, 390 P.2d 860; Weber Basin Water Conservancy District v. Ward, 10 Utah 2d 29, 347 P.2d 862; as to adversely affecting waters on the property see statement in Bd. of Education, etc. v. Croft, 13 Utah 2d 310, 373 P.2d 697, and authorities therein cited.
. Crescent Mining Co. v. Silver King Mining Co., 17 Utah 444, 54 P. 244; State Highway Commission v. Ponten, 77 Wash.2d 463, 463 P.2d 150; 2 Nichols on Eminent Domain, p. 255, Sec. 5.78 (1) and cases therein cited. The citation of Weber Basin v. Gailey by the Chief Justice is appreciated as instructive on this problem, 5 Utah 2d 385, 303 P.2d 271. It is to be noted that it *27dealt with a situation different from the instant one; and that that case stated at p. 60 of 8 Utah 2d, 328 P.2d at p. 178, that “It seems that the landowner does have some rights in the waters naturally occurring in his soil while they remain therein; and we do not doubt that no one . . . could in effect, pirate the waters, by making an artificial canal or other excavation for the purpose of draining the land, without being held responsible.”