#### UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Respondent, v. Ira HATCH, d/b/a Marble Motel; Ira Hatch, d/b/a Sandman Motel; Bertha C. Jensen, d/b/a Golden Spike Hotel, and Helen Reeder et al., Defendants and Appellants.

No. 16526.

Supreme Court of Utah.

June 9, 1980.

Thomas T. Billings, of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, for defendants and appellants.

Robert B. Hansen, Atty. Gen., Stephen J. Sorenson, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

WILKINS, Justice:

This is an action (more precisely, three actions consolidated here and below) in eminent domain commenced by the plaintiff in which it is specifically seeking to condemn certain outdoor advertising signs owned by the defendants pursuant to the Utah Highway Beautification Act, § 27-12-136.1, et seq., Utah Code Ann., 1953, as amended.1

A hearing was held in the District Court of Box Elder County, sitting without a jury, upon plaintiff’s motions for orders of immediate occupancy against defendants, pursuant to §§ 78-34-9 and 27-12-136.il,2 and plaintiff’s motions were granted. Defendants then petitioned this Court, pursuant to Rule 72(b), Utah Rules of Civil Procedure, for an intermediate appeal from these orders which was granted. Reversed and remanded. No costs awarded.

Defendants contend error was committed by the District Court in that (1) immediate occupancy requisites are not present here, as required by § 78-34-9, nor as reflected in the Court’s memorandum decision, (2) this occupancy will cause irreparable injury to defendants with a pressing need therefor, and should not be permitted without addressing questions of law and fact in an evidentiary hearing concerning constitutional challenges raised by defendants.

We address only the first contention, which is dispositive. We note that no findings were made but that the Court’s memorandum decision, dated April 30, 1979, states:

> The Court having reviewed the memoran-da in these matters and also the transcript in the Davis County case of Utah Department of Transportation, Plaintiff v. Grant Lloyd, Defendant. The Court finds there is a right to condemn and with it the right for immediate occupancy. The Court, therefore, grants the requests for orders of immediate occupancy to Utah Department of Transportation.

We also note that the order of immediate occupancy, dated May 23,1979, repeat, *inter alia,*the substantial language of the memo*765randum decision but additionally recite that immediate occupancy is “necessary and proper.”

Section 78-34-9 states, in pertinent part, that the plaintiff, after commencement of an action, may move for an order:

> . permitting the plaintiff to occupy the premises sought to be condemned pending the action, including appeal, and to do such work thereon as may be required. The court or a judge thereof shall take proof by affidavit or otherwise of the value of the premises sought to be condemned and of the damages which will accrue from the condemnation, *and of the reasons for requiring speedy occupation, and shall grant or refuse the motion according to the equity of the case and the relative damages which may accrue to the parties,*[emphasis added].

We are not able to ascertain from the memorandum decision and order here what the specific reasons are for permitting immediate occupancy for they are not designated therein. Further, from an examination of the record on appeal in this matter it appears when measuring the clear language of § 78-34-9 concerning “. . . the equity of the case and the relative damages which may accrue to the parties” that plaintiff cannot prevail in its efforts for immediate occupancy as a matter of law.

The right to condemn (which, of course, is not involved in this appeal) does not flow automatically into a right of immediate occupancy; the requisites noted in § 78-34-9 must be met, legally vexing though they may be to a condemnor, before it can prevail in the latter.

CROCKETT, C. J., and MAUGHAN, HALL and STEWART, JJ., concur.

1

. All statutory references are to this Code.

2

. Section 27-12-136.11, as pertinent here, states: “Eminent domain shall be exercised in accordance with the provision of chapter 34 of title 78.”