Blue River Power Company v. Hronik

• Decision Date: 27 January 1928
• Docket Number: 25324
• Citation: 217 N.W. 604,116 Neb. 405
• Parties: BLUE RIVER POWER COMPANY, APPELLANT, v. FRANK HRONIK ET AL., APPELLEES
• Court: Nebraska Supreme Court

217 N.W. 604

116 Neb. 405

BLUE RIVER POWER COMPANY, APPELLANT, v. FRANK HRONIK ET AL., APPELLEES

No. 25324

Supreme Court of Nebraska

January 27, 1928

APPEAL from the district court for Saline county: ROBERT M PROUDFIT, JUDGE. Reversed and dismissed.

Reversed and remanded, with instructions.

Thomas Vail & Stoner, for appellant.

Glenn N. Venrick, Francis H. Mayo, Merrill A. Russell and John E Mekota, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and HOWELL, JJ., and REDICK, District Judge.

OPINION

REDICK, District Judge.

Proceeding in ad quod damnum under section 3377 et seq., Comp. St. 1922. The matter had progressed to the filing of the report upon inquest as to amount of damages. Defendants moved to confirm the report, and plaintiff moved to dismiss the proceedings. The motion to dismiss was allowed by district court upon condition that plaintiff pay defendants their counsel fees, which the court fixed at $ 1,000. Plaintiff excepted and appeals. The only question for our determination is the authority of the court to attach the condition.

Under our laws a case may be dismissed "by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court" as a matter of right. Comp. St. 1922, sec. 8598; Snyder v. Collier, 85 Neb. 552, 123 N.W. 1023. But the court may, when justice requires it, impose reasonable terms, or refuse dismissal. Horton v. State, 63 Neb. 34, 88 N.W. 146. Some doubt is suggested as to the application of the above statute to a proceeding of the present character, section 3388, regulating these proceedings, provides: "Issues of law and of facts may be made up and tried as in other cases; and the court may quash the writ, or set aside the inquest, and may award a new writ on payment of all costs by the party who has built, or proposes to build, such milldam, or the court may dismiss the proceedings, or may ratify and confirm such inquest." By section 3397 it is provided: "Should no resistance be made to proceedings brought under this chapter, to obtain leave to build or continue a milldam, the costs shall be adjudged against the plaintiff; but if such proceedings be resisted in any stage thereof, the court shall equitably adjust the costs which are caused by such resistance, having regard to the event." And by section 3399: "Each juror shall be allowed one dollar for each day's attendance, and other costs shall be allowed as in other cases." The proceeding may be instituted by either the erector of the dam or the landowner to assess the damages, and, when brought, it is carried on as an ordinary action. It would seem that as the issues are to be tried as in other cases, and proceedings may be initiated by either party, it should be looked upon as an action which may be discontinued on the same terms as actions at law. In Moore v. Waddington, 69 Neb. 615, 96 N.W. 279, we held that an election contest was an action within the terms of the statute allowing plaintiff to dismiss.

Assuming that "a party should no more be compelled to continue a litigation than to commence one, except where substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance" (In re Butler, 101 N.Y. 307, 4 N.E. 518), what rights have accrued to defendants in consequence of these proceedings, and what injustice will they suffer by their discontinuance? The only right they have is to damages for flooding their lands, but this they had before and still have. Such right did not accrue to them by reason of these proceedings. What injustice will be done to them by the dismissal? The only injustice claimed is that they have been subjected to liability for attorney's fees; but this presents no different situation from the dismissal without prejudice of an ordinary action, and in such case it can hardly be maintained that payment of defendant's attorney's fees may be made a condition of the dismissal, in the absence of statutory authority. In such cases the loss occasioned defendant by the exercise by plaintiff of a legal right is damnum absque injuria. McCready v. Rio Grande W. R. Co., 30 Utah 1, 83 P. 331.

The "costs" referred to in sections 3388, 3397, and 3399 are the usual costs provided by statute. McCready v. Rio Grande W. R. Co., 30 Utah 1, 83 P. 331. "Costs as in other cases." Warm Springs Irrigation District v. Pacific Live Stock Co., 89 Ore. 19, 173 P. 265. These were both condemnation cases, and by the latter it was held that, though the statute permitted the assessment of an attorney's fee after judgment, where proceedings were dismissed before final disposition, only costs could be taxed.

It is perfectly clear that, had these proceedings proceeded to judgment, the court would have been without authority to tax a fee for defendant's attorneys or otherwise. What, then, other than an arrogated authority exists to assess a fee as a condition of dismissal? Section 3388 permits the court to quash the writ "on payment all costs," which, as we have shown, means costs provide by statute. What greater power does the court posed in sustaining a motion of plaintiff to dismiss than if acted upon its own motion?

What, then, is meant by the language, "The court, in its discretion, may refuse to dismiss whenever justice to the court, or its officers, or to any of the parties, requires imposition of terms, or retention of the cause upon the docket," in Horton v. State, 63 Neb. 34, 88 N.W. 146? The answer is found in the opinion; it was applied in Sheedy v. McMurtry, 44 Neb. 499, 63 N.W. 21, by requiring payment of costs; in Bryon v. Durrie, 6 Abb. New Cas. (N.Y.) 135, to protect rights of attorneys (for plaintiff) under agreements as to fees; in Stevens v. Railroads, 4 F. 97, to protect a defendant in his plea of estoppel from the danger of a possible transfer of a lien; and in Lane v. Morton, 81 N.C. 38, to enable a defendant to obtain restitution, as was the Horton case itself. The opinion by Roscoe Pound, C., continues:

"Of course, there must be some real and substantial right which has accrued to the adverse party in the very cause sought to be dismissed. Collateral consequences, such as subjection of the defendant to further litigation, or purposes not connected with the action in question, will not be allowed to interfere with the right given to plaintiffs by statute. Banks v. Uhl, 6 Neb. 145. Hence, ordinarily, the dismissal will be allowed as of course. Beals, Torrey & Co. v. Western Union Telegraph Co., 53 Neb. 601, 74 N.W. 54. But we know of no case appealing to a court more strongly for application of its discretionary power than one in which money or property has been taken under an unwarranted and improvident judgment, which has been reversed, and the adverse party is entitled to restitution. It would require convincing argument and strong weight of authority to persuade us that a dismissal could be had as a matter of right in such case, before mandate filed and without reasonable opportunity to direct the court's attention to the claim for restitution, and the defendant thus deprived of his summary remedy and driven to the difficult and expensive remedy of another action. The discretion of the court in such cases is grounded on the requirements of justice to itself, its officers, and the adverse parties. It depends upon the existence of rights which would be jeoparded by dismissal, not upon the manner in which the court becomes cognizant of such rights."

Our attention has not been called to any substantial right which has accrued to appellee by virtue of these proceedings; neither does it appear that appellant has obtained any advantage thereby which should be surrendered as a condition of dismissal. As stated in the brief of counsel for appellees, the condition may be imposed "for the protection of rights which would be otherwise jeopardized by the dismissal;" and, as already stated, their rights remain the same; they are still entitled to damages to their lands, and may on their own initiative institute proceedings ad quod damnum for their assessment, or actions at law for their recovery. In such case there is no basis for the exercise of discretion or imposition of terms beyond the payment of costs.

Appellees cite a number of cases to the general proposition that the court is vested with a discretion to condition a dismissal upon compliance with reasonable terms; but, with one exception, payment of attorney's fees was not required. In re Waverly Water-Works Co., 85 N.Y. 478, makes strongly for appellees. That was a proceeding in eminent domain, and, after damages for taking the lot in question had been assessed,...