dissenting:
The dispositional issue presented by this appeal is simply one of fact, namely: whether the plaintiff unreasonably delayed the condemnation proceedings so as to prejudice the Fribergs’ right to appropriate compensation and damages. The trial court resolved this issue in favor of plaintiff, and its decision is supported by substantial evidence that precludes this Court from substituting its judgment for that of the trial court.1
The record plainly shows that plaintiff postponed final condemnation of the Fri-bergs’ property until 1979 as an accommodation to the Fribergs, who, according to their counsel, “didn’t want to surrender the property under any circumstances” and wished to “stay as long as they could [in the hope that] perhaps the highway would never be built.”
Following the Fribergs’ 1972 stipulation to “immediate occupancy” by plaintiff, the Fribergs made several requests to Donald Coleman, counsel for plaintiff, for cooperation by plaintiff in allowing them to remain on the property as long as possible. A letter written to Coleman on September 12, 1973, by counsel for the Fribergs contained one such request:
In all events, the Fribergs wish to retain the use and occupancy of the property for as long as possible and to that end, I will look to hearing from you....
According to an affidavit by Coleman, he telephoned the Fribergs’ counsel following receipt of the above letter and agreed that “as an accommodation to him [Coleman] would delay proceeding to displace the defendants as long as he could.” Coleman’s affidavit further states:
During the pendency of this action, there have been several verbal communications between Affiant and counsel for the defendants, and the request to delay proceeding against the defendants has been repeatedly made by defendants’ attorney and Affiant has agreed to cooperate to the extent possible to avoid displacement of the defendants as long as possible.
Affiant within the last month has received a verbal request from defendants’ counsel to delay proceedings to displace said defendants until next year. Affiant said while he could make no promises he would see what could be done.
Considerable action has been undertaken in this case since December, 1972, and the telephone conferences that have taken place during the pendency of this cause involved the discussion of issues important to this case, such as deferring displacement of defendants ....
The plaintiff has been ready, willing and able to proceed with this cause of action and would have done so had it not been for the conduct of the defendants and their counsel.
The Fribergs do not deny having made such requests to plaintiff.
In addition to persuading plaintiff to postpone condemnation proceedings, the Fribergs themselves initiated federal litigation that prevented plaintiff from continuing with its plans for the beltway. In Cottonwood Citizens Group v. Brinegar,2 a suit brought by the Fribergs and other Cottonwood-area citizens, the citizens’ group alleged violations by plaintiff of federal environmental protection laws and prayed for an order “enjoining defendants *838from taking any action in connection with the Project including ... authorizing or permitting further or continued condemnation” until the alleged violations had been corrected. In response, the federal district court in which that suit was pending issued an order requiring preparation of an environmental impact statement on the project and suspending all related planning and engineering work by plaintiff except as necessitated by preparation of the impact statement itself. The order also prohibited construction work on the southeast quadrant and limited plaintiffs right to purchase property. This order effectively prevented plaintiff from proceeding with its plans for the beltway between January, 1974, the date of its issuance, and April, 1978, the date of final approval of the impact statement.
In February, 1979, following final approval of the impact statement, Cottonwood, Inc., a group to which the Fribergs had contributed financially, filed a second federal suit challenging the adequacy of the impact statement.3 Without waiting for resolution of the further issues raised by this second suit, plaintiff served the Fribergs with a notice to vacate in June, 1979. The Fribergs continued to resist relinquishing their property, asserting in an “Objection to [Notice to] Vacate Premises”:
Until [the Cottonwood, Inc.,] case has been resolved and until it is patently clear that the said highway project will proceed on a defined schedule in the immediate future, the property of these Defendants should not be taken or condemned.
Less than three months later, the Fri-bergs filed a motion to dismiss the condemnation complaint for failure to prosecute, relying on grounds similar to those argued in support of the present motion. In denying that motion, the trial court found as follows:
Although this action has been pending some seven years, a good portion of the delay can be placed upon the direct or indirect conduct of the defendants. They have either directly or indirectly filed one or two actions in federal court seeking the delay or cancellation of this project. To now seek dismissal of this case for nonprosecution would be inequitable. [Emphasis added.]
It is clear that the Fribergs made every effort to procrastinate the date of condemnation as long as possible and that they would not have welcomed an earlier condemnation date even though this might have enabled them to acquire other property at a time when prices were lower. Counsel for the Fribergs stated in this regard:
[T]he Fribergs didn’t want to surrender the property under any circumstances _ [M]oney wasn’t the question. At this point the question was could they stay on the property.
It is true that the Fribergs should not be penalized for having exercised their right to litigate issues relating to the legality of the beltway project and to plaintiff’s right to condemn. However, the Fribergs’ right to exercise all legal means of prolonging the condemnation process did not include the right to profit from the resulting delay by claiming for themselves, in contravention of their stipulation and the well-established statutory valuation date, appreciation on the subject property caused by such delay. Valuation of the Fribergs’ property as of the date of summons would not penalize them, nor would it deprive them of any benefit that they would have obtained if they had not exercised this right.
Moreover, the stipulation executed by the parties in 1972 that authorized the court to enter its order of immediate occupancy sets forth terms of compensation that are wholly inconsistent with a 1979 valuation date. The stipulation reads in toto as follows:
1. Plaintiff shall deposit with the Clerk of the Court the sum of $80,000, which shall be paid by the Clerk to the defendants forthwith by delivering to counsel of record for defendants the *839check or warrant of plaintiff in the sum of $80,000.
2. Defendants shall be entitled to remain in possession of the premises rent free until September 1, 1973 and for periods thereafter on a month by month basis. Defendants shall be entitled to 30 day advance notice before being required to vacate the premises.
3. Interest on any amount recovered by defendants in addition to the $80,000 above mentioned will not begin to accrue until defendants have vacated the premises. Interest from said point in time shall be at the rate provided by Section 78-34-9 Utah Code Annotated as amended.
The foregoing stipulation afforded the Fribergs two substantial monetary advantages, one of which is required by statute,4 but the second of which is neither contemplated nor required by statute.5 First, their agreement that the sum of $80,000 be paid forthwith placed the Fribergs in a position to immediately invest those funds as they saw fit. The fact that they subsequently chose not to accept the funds and thus voluntarily deprived themselves of that advantage is of no consequence in the resolution of this appeal. Second, the stipulation permitted the Fribergs to remain in possession of the property rent-free. They have since enjoyed some eight years of rent-free occupancy, which adequately compensates them according to their stipulated bargain with plaintiff. As a rule of thumb, monthly rental value is deemed to be a sum equal to one percent of market value. Even assuming that the $80,000 figure paid over by plaintiff represented full market value rather than only 75 percent thereof, as required by statute, infra, the monthly rental value was $800, or $9,600 per an-num, and the Fribergs, over the eight-year period, have had the advantage of rent-free occupancy valued at $76,800. It is therefore clearly unjust to allow the Fribergs, by setting their own valuation date, to receive appreciation in addition to the substantial benefits already received under their agreement.
U.C.A., 1953, § 78-34-4 provides that before property can be taken it must appear that the use to which it is to be applied is a use authorized by law and that the taking is necessary to such use. Section 78-34-9 empowers the court to grant immediate occupancy of the premises pending final determination of the condemnation proceeding. The power is largely discretionary, and in the exercise of its discretion, the court may well require a showing that the proposed use is authorized by law and that the taking is necessary for the contemplated use if those issues are in dispute.6
The court is obliged to take proof of the value of the premises sought to be condemned, the damages that will accrue from the condemnation and the reasons for requiring speedy occupation and shall grant or refuse immediate occupation according to the equity of the case and the relative damages that may accrue to the parties.7
As a condition precedent to occupancy, the condemnor must deposit with the clerk of the court a sum equal to at least 75 percent of the condemnor’s appraised value of the property, and payment thereof to the condemnee shall be held to be an abandonment of all defenses except the claim for greater compensation.8 In this ease, the Fribergs agreed that payment of $80,000 would be made forthwith.
The tenor and effect of the stipulation of the parties was to relieve the plaintiff of the need to present proof that the conditions precedent to a taking as provided by §§ 78-34-4 and 78-34-9 had been met. This is to be seen in that the plain language of the stipulation reflects the agreement of *840the parties that plaintiff was entitled to immediate occupancy. Furthermore, the stipulation does not recite the existence of a controversy as to the authority to take or the necessity of the taking, and of course it does not preserve any such issues for a future determination. In the exercise of its discretion, the court accepted the stipulation and entered its order of occupancy without the necessity of a hearing and the taking of evidence, and for all intents and purposes the taking was then complete. All that remained was a determination of damages and the entry of judgment.9
The fact that the stipulation preserved only the issue of damages for trial is not surprising. On the contrary, it is wholly consistent with the usual course of events in condemnation proceedings. Whenever issues pertaining to authority to condemn or necessity of the taking exist at the time an order of immediate occupancy is sought, the best interests of all concerned, including those of the court, dictate that those issues be resolved prior to the issuance of the order of occupancy. Otherwise, the condemnor runs the unnecessary risk of defeat and the resultant loss of sums expended in preparing the property for its new use. Similarly, the condemnee runs the risk of irreparable harm to the property if the condemnor is permitted to occupy and alter the property to accommodate the new use.
The particular facts of this case graphically illustrate the foregoing discussion. Plaintiff’s designated use of the property entailed the construction of a remaining segment of the belt-route highway system in Salt Lake County. In light of the magnitude of such a project and the drastic change it would make in the topography, it seems beyond comprehension that the parties would agree to an order of immediate occupancy if in fact legitimate issues of authority or necessity of the taking remained to be resolved.
The main opinion concedes that it is impossible to formulate a guideline for when the courts should depart from the statutory date of service of summons for the purpose of assessing compensation and damages.10 Therein lies the fallacy in considering a departure therefrom at all. To do so invites controversy in every case and affords a means for the parties to manipulate the measure of compensation that has heretofore been prevented by adherence to the statutory provision.
I remain unpersuaded that the facts of this case should prompt this Court to depart from the explicit language of U.C.A., 1953, § 78-34-11, which establishes the valuation date as of the date of service of summons.
I would affirm the judgment of the trial court.
HOWE, J., concurs in the dissenting opinion of HALL, C.J.. Kinkella v. Baugh, Utah, 660 P.2d 233 (1983).
. No. C-225-73 (D.Utah Jan. 11, 1974).
. Cottonwood, Inc. v. Hurley, No. C-79-0081 (D.Utah Nov. 29, 1979).
. U.C.A., 1953, § 78-34-9.
. Id.
. Utah Copper Co. v. Montana-Bingham Consolidated Mining Co., 69 Utah 423, 255 P. 672 (1926).
. U.C.A., 1953, § 78-34-9, supra.
. Id.
. As provided by U.C.A., 1953, § 78-34-15.
. Provided for by U.C.A., 1953, § 78-34-11.