263 N.W. 295 | Minn. | 1935
The assignments of error all go to the propositions (1) whether respondents were entitled to judgment of dismissal, and (2) whether *410 counsel fees and costs and disbursements can be allowed against the state.
If respondents are entitled to disbursements, costs, or counsel fees on discontinuance or abandonment of a proceeding to take their land for a trunk highway, the entry of judgment therefor would clearly be proper. So consideration need only be given to the second proposition. In special proceedings, and such is a proceeding under eminent domain statutes, costs are not allowable unless expressly authorized by statute. 2 Dunnell, Minn. Dig. (2 ed. Supp. 1932) § 2198; In re Improvement of Third Street, St. Paul,
"All damages allowed under this chapter, whether by the commissioners or upon appeal, shall bear interest from the time of the filing of the commissioners' report. If the award be not paid within sixty days after such filing, or, in case of an appeal within the like period, after final judgment thereon, the court, on motion of the owner of the land, shall vacate the award and dismiss the proceeding as against such land. And when the proceeding is so dismissed, or the same is discontinued by the petitioner, the owner may recover from the petitioner reasonable costs and expenses, including fees of counsel."
The state concedes that this statute authorizes the imposition of costs and expenses upon the petitioner in a condemnation proceeding who discontinues the same if such petitioner be not the state. But it is contended that the section quoted is not a part of L. 1927, c. 237 (2 Mason Minn. St. 1927, §§ 6557-1 to 6557-3), hence there is no authority for taxing costs against the state. It is to be noted that the title to c. 237 indicates that the purpose was to regulate the procedure not only for the state but also for its agencies and political subdivisions in eminent domain proceedings, to repeal §§ 6556 and 6557, and to provide for costs and disbursements to the prevailing party on appeals therein. The first section of the *411
chapter makes clear that it was to become a part of c. 41 (the chapter in the 1905, 1923, and 1927 Codes dealing with the right of eminent domain), and the last section thereof that it was to take the place of §§ 6556 and 6557 of c. 41 of the prior Codes. While L. 1927, c. 237, § 1(b) (§ 6557-1[b]) makes it mandatory instead of discretionary, as in § 6550, to allow the prevailing party on appeal costs and disbursements, there is nothing in L. 1927, c. 237, which by implication repeals any other provision contained in 2 Mason Minn. St. 1927, c. 41 [§ 6537 et seq.], except the two sections specifically named. We must therefore conclude that § 6552 thereof applies to all eminent domain proceedings whether instituted by the state or its agencies or by others. Hence, when it appears, as here, that after hearings before the commissioners have been had and expenses therein have been incurred by the owners of certain parcels of land sought to be taken, "the proceeding * * * is discontinued by the petitioner, the owner may recover from the petitioner reasonable costs and expenses, including fees of counsel." No doubt this provision was inserted so that the owner of lands should not be put to futile and unnecessary trouble and expense in protecting his interests, and then whenever the petitioner saw fit, either before or after the commissioners filed the appraisal or award, the proceeding could be discontinued or abandoned to be later again instituted. We think § 6552 applies as well to a discontinuance of a condemnation proceeding by the state as by any other petitioner. This finds support in State, by Hilton, v. Umberger,
There is a claim that the counsel fees allowed are excessive. We cannot see how the state can with candor urge such a proposition in this court in view of its motion in the trial court to replace the findings made and filed with proposed findings wherein one is in these words:
"11. That pursuant to said retainer and employment of said attorneys, Messrs. Sullivan Neumeier, by said respondent, said attorneys rendered legal services for said respondent as hereinbefore set forth and that the reasonable value thereof is the sum of One Hundred and Fifty Dollars ($150), and respondent incurred costs and disbursements in procuring witnesses to attend and testify at the hearing of said commissioners * * *."
The application for counsel fee and costs was heard upon affidavits. Nothing in the affidavits presented by appellant controverted the value of the services of respondents' attorneys as stated in the affidavits presented by them to be the sum of $250 in each case.
That the procedure here followed to obtain the costs provided by 6552 in the condemnation proceeding itself rather than by independent action was determined in McRostie v. City of Owatonna,
The judgments are affirmed. *413