(dissenting).
I dissent. 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. I will discuss these points in the order stated above.
(1) Plaintiffs’ complaint alleges that they were the owners of all of the land in Upland Terrace. They further allege that said land abuts on the north side of 3900 South Street, which, before the defendants changed the road grade, was the same *422level as that street, but that between July 3 and Novmber 17, 1956, the defendants lowered the grade of the street to 16 or more feet below the level of plaintiffs’ land, thereby destroyed plaintiffs’ means of ingress and egress and reduced the number of lots which can be made available in plaintiffs’ land, destroying its market value to the extent of $43,000. The plaintiffs ask in the alternative for the damages caused, or for a writ of mandamus requiring defendants to institute an action to assess such damage and require them to pay the same. This appeal is from' the trial court’s refusal to grant summary judgment dismissing plaintiffs’ action.
■ It is not unreasonable that such change in the level of the adjoining street might 'cause substantial damages to plaintiffs’ property. It has long been recognized in this State that such damages are com-pensable.1 If the State had needed an additional narrow strip of plaintiffs’ ground in order to make the improvements which it has made, our eminent domain statute would require it to institute a condemnation proceeding in which the jury would bfe required to assess the resulting damage to plaintiffs’ land, including the damages from lowering the level of the street. Yet under this decision, regardless of how great the damages which the change in the grade of the street might cause the plaintiffs, they have no remedy.
(2) The majority decision in this case is directly contrary to Article I, Section 22, Constitution of Utah, which expressly provides that: “[Pjrivate property shall not be taken or damaged for public use without just compensation.” This provision should be construed as self-executing and as the sovereign’s consent to a direct action by any person whose property is taken or damaged for public use without just compensation. ■ To hold otherwise means that in cases of this kind the sovereign may take or damage private property for public use without paying therefor directly contrary to this constitutional provision. The constitution is the supreme law of the land. It is paramount to and takes precedence over statutory enactments. The state legislature has no authority to enact laws contrary to a constitutional provision and the courts are required to enforce its provision with or without legislative implementation. It certainly is an anomolous situation to hold, as the majority opinion does, that in this case this provision of the Constitution is a complete nullity merely because the legislature has failed to enact implementing legislation authorizing a direct suit to recover damages to property from a public use, when the legislature *423is powerless to so nullify such provision by direct enactment.2
(3) The holding of the prevailing opinion is contrary to our previous decisions which it does not purport to overrule:
Webber v. Salt Lake City,3 was an action to recover damages to abutting property from a change in the grade of a street. A statute expressly authorized such action with a limitation statute requiring that such action be commenced within one year. The action was commenced after the year had expired and it was claimed that the action was not maintainable. We quoted Section 22 of Article I of our Constitution as herein previously quoted stating that it was concededly self-executing, and stated that “[T]he right to recover consequential damages for injury to private property by reason of making public improvements therefore does not rest upon section 282, supra, but is based upon the provision quoted from section 22 of article I of our Constitution.” That case is not distinguishable from this case in any material particular. It affirms an award for consequential damages on the sole and only ground that Section 22 is self-executing and is contrary to the holding in the prevailing opinion.
Also in State by State Road Commission v. Fourth District Court4 the State sought to enjoin further proceedings in the trial of another action pending in that court. The plaintiffs in the pending action were abutting landowners to a public highway on which the State proposed to construct a viaduct. They sought to enjoin such construction until they were compensated for the damages to their abutting lands which would result from such construction, or until eminent domain proceedings were instituted. We held that the plaintiffs in the pending action were entitled to the in-junctive relief sought against the members of the State Road Commission and the construction contractor. In so holding we said:
“We think it is clear that the framers of the Constitution did not intend to give the rights granted by section 22, and then leave the citizen powerless to enforce such rights. * * *. (94 Utah 397, 78 P.2d 508)
******
“The State Road Commission is * * * an agency of the State, and suit against it is suit against the State. Suit against the State cannot be maintained without its consent, and that consent is not ordinarily implied. It *424may be argued that by adopting the provisions of section 22 of article 1 of the Constitution, the State has impliedly granted consent to be sued in the case of a taking or damaging of private property for state use without compensation. Such a rule has been declared in at least one jurisdiction, Chick Springs Water Co. v. State Highway Dept., 159 S.C. 481, 157 S.E. 842. * * * (94 Utah 398, 78 P.2d 508)
“We think if a case arises where there is no other method of enforcing a constitutional right except by suit against the State, then it must be considered that the State has given its consent to be sued in such a case. In this case, however, we hold that the Road Commissioners individually may be enjoined from proceeding in a manner forbidden by the Constitution— and that it is therefore unnecessary to permit suit against the State * * (94 Utah 399, 78 P.2d 509)
The only purpose or effect of that decision was to enjoin the State from proceeding with the viaduct project without arranging to compensate the abutting landowners for the damage from such public use of that property. Further, we approved the holding in the Chick Springs Water Company case by stating that if there was no other method of enforcing that constitutional right except by a direct suit against the State, such consent would be implied. There, we approved the method of enforcing this constitutional provision claimed in that action. Direct recovery of damages for. public use of private property was not sought in that action against the State, but to make sure that the decision could not be misunderstood, it was pointed out that where there is no other way to obtain such relief other than by direct suit, the State had by implication given its consent thereto. Under the prevailing opinion there is no other way in the present case to recover just compensation for the damage to plaintiffs’ property. So that holding is contrary to the present decision, which denies the right of a direct suit against the State although it has conclusively precluded any other method of obtaining such relief.
(4) In none of the Utah cases cited in the prevailing opinion was the question of whether Article I, Section 22 is a consent to such a suit against the sovereign a determining factor.
Before discussing these cases, I will try to clarify my position because Mr. Justice Henriod in Note 9 in the Springville Banking Co. case seems to have misconceived my meaning. I do not now nor have I ever advocated the complete elimination of the sovereign immunity doctrine, either by *425judicial decision or otherwise.5 Nor do I claim that Article I, Section 22 has or should have that effect. I simply contend that such section by forbidding the taking or damaging of private property for public use without just compensation is a consent by the State and all its agencies and subdivisions to a suit for the recovery of such compensation. This provision clearly requires the taking or damaging of tangible private property, and that the public use must be intentional and not merely accidental or negligently caused.6 So damages for personal injuries or from breach of contract and all damages except from an intentional public use are not included in such consent.
In Wilkinson v. State,7 a landowner sued the State, the State Road Commission, its individual members and the State Engineer and his assistant for damages to his land from a flood, and the enlargement of an irrigation canal and diversion of some waters from their nature course. The trial court awarded damages to plaintiff purportedly not against the State, but directed payment from the State Reclamation Funds. This court reversed that award, holding that the injuries were accidental, but that there was no pleading or proof of negligence for the flood was so unusually large that the injuries were unavoidable. It was further held that, this award was in fact against the State, that the State cannot be sued without its consent, and there was no statutory or constitutional provision consenting to such suit. No mention was made of Article I, Section 22, but it is generally recognized that accidental or negligent injury is not a damage to private property for a public use.8 So that case has no bearing on our proN lem.
Most of the other cases cited in the prevailing opinion also have no bearing on our problem. Thus, we allowed a suit under statutory consent by a road construction contractor against the State Road Commission for damages for breach of a contract,9 but we denied a suit for a child against the school board to recover damages from personal injury through negligently maintaining an incinerator on the school property;10 we denied the right of an abutting landowner to recover from the individual members of the State Road Com*426mission for damages from a State project which changed the grade of a highway.11 This was of course not a suit against the State. And we denied the right of a person to sue the County for personal injuries from negligent maintenance of a golf course club house.12 These cases have no bearing whatever on whether Section 22 of our Constitution is a consent by the State to a suit for the recovery of just compensation for taking or damaging of private property. In two other cases, one for injunctive relief13 and the other for damages, all members of the court agreed that the damages claimed were noncom-pensable,14 but the prevailing opinion added the unnecessary holding that such a suit could not he maintained on account of sovereign immunity. The decision in these two cases would have been the same as all members of the court agreed regardless of that doctrine.
(5) In my opinion the prevailing opinion is contrary to the great weight of authority and better reasoning. I have extensively set forth my views on this question in my dissent in the Springville Banking Company case,15 which I will not repeat here.
(6) After extensive research on this problem I have yet to learn of one good reason why we should revert to the sovereign immunity doctrine in view of this constitutional provision. This is especially true in view of our previous positive decision to the contrary. Under the present decision I think the people of this State are in great need of a legislative enactment allowing such a suit against the State, and of a liberalization of the law in general where the doctrine of sovereign immunity applies. The need for such enactment is the same as the need for the eminent domain statute was before its enactment, except that since the enactment of the eminent domain statute, the problem does not arise so often. However, in cases where the State can get possession of private property, or can damage it for public use without resort to condemnation under the eminent domain statute, the damage and injustice to the private individual is just as great as it would be if the State could take private property by condemnation under the eminent domain statute for public use without just compensation. I realize and am thankful that some of the harshness and injustice of this type of holding may be alleviated by an application to the State Board of Examiners for *427compensation. While I do not agree that this provision satisfies the requirement of the constitutional provision, yet I am happy that there is a possibility of some relief from the effects of this decision.
. See State by State Road Commission v. Fourth District Court, 1939, 94 Utah 384, 78 P.2d 502, aud cases cited in notes 19 and 20 to my opinion in Spring-ville Banking Co. v. Burton, 1960, 10 Utah 2d 100, 349 P.2d 157.
.See discussion of this question in my opinion in Springville Banking Co. v. Burton in Note 1.
. Webber v. Salt Lake City, 1911, 40 Utah 221, 120 P. 503, 504, 37 L.R.A.,N.S., 1115.
. State by State Road Commission v. Fourth District Court, note 1.
. Springville Banking Co. v. Burton, note 1; Bingham v. Board of Education, 1950, 118 Utah 582, 223 P.2d 432.
. See Springville Banking Co. v. Burton, both dissenting and prevailing opinions. Note 1, Hjorth v. Whittenburg, 121 Utah 324, 241 P.2d 907; Lund v. Salt Lake County, 58 Utah 546, 200 P. 510; Great Northern R. Co. v. State, 102 Wash. 248, 173 P. 40, L.R.A.1918E, 987.
. Wilkinson v. State, 42 Utah 483, 134 P. 626.
. See cases cited in note 6.
. See Campbell Bldg. Co. v. State Road Comm., 95 Utah 242, 70 P.2d 857.
. See Bingham v. Board of Education, note 5.
. See Hjorth v. Whittenburg, note 6.
. See Jopos v. Salt Lake County, 9 Utah 2d 297, 343 P.2d 728.
. See Springville Banking Co. v. Burton, note 1.
. See State v. Tedesco, 4 Utah 2d 31, 286 P.2d 785.
. Springville Banking Co. v. Burton, note 1; see State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988.