Bowers v. Fulton County

• Decision Date: 09 July 1971
• Docket Number: No. 26035,26035
• Parties: Caleb J. BOWERS v. FULTON COUNTY.
• Court: Georgia Supreme Court

Page 347

183 S.E.2d 347

227 Ga. 814

Caleb J. BOWERS v. FULTON COUNTY.

No. 26035.

Supreme Court of Georgia.

July 9, 1971.

Rehearing Denied July 30, 1971.

Syllabus by the court

1, 2. The decision and judgment of the Court of Appeals (Bowers v. Fulton County, 122 Ga.App. 45, 176 S.E.2d 219) that attorneys fees and expenses of litigation are not embraced within just compensation for land taken by eminent domain, and other rulings of said court, are affirmed.

Houston White, Sr., Red Oak, for appellant.

Paul H. Anderson, Robert G. Young, George H. Gillon, Atlanta, for appellee.

James F. Cox, Peek, Whaley & Haldi, Glenville Haldi, Atltnta, Anthony A. Alaimo, Brunswick, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., E. J. Summerour, G. Dean Booth, Warren O. Wheeler, Atlanta, amici curiae.

ALMAND, Chief Justice.

(1) We granted certiorari in this case to review the ruling of the Court of Appeals (Bowers v. Fulton County, 122 Ga.App. 45, 176 S.E.2d 219), which Bowers assigned as error, and that was that attorneys fees and expenses of litigation are not embraced within just compensation for land taken by eminent domain, there being no statutory provision for the payment of attorneys fees and expenses of litigation in condemnation cases.

The Court of Appeals correctly decided this issue and in affirming the judgment we add some additional authorities to its opinion.

Expenses of litigation are not generally allowed as a part of the damages; Code § 20-1404. Attorney fees are recoverable only where authorized by some statutory provision or by contract; Bankers Fidelity Life Insurance Company v. Oliver, 106 Ga.App. 305, 126 S.E.2d 887. The provision of our Constitution (Art. I, Sec. III, Par. I, Code Ann. § 2-301) is for the payment of 'just compensation' before private property can be taken or damaged. No provision is made in the Constitution or by statute that authorizes the award of attorney fees and expenses of litigation as a part of just compensation, but the award is determined by the value of the property taken or damaged. Before this provision as to 'damages' becomes applicable, the owner's property must be taken or physically damaged for a public use. Austin v. Augusta Terminal Railway Co., 108 Ga. 671(3), 34 S.E. 852; State Highway Department v. McClain, 216 Ga. 1(1), 114 S.E.2d 125.

The right to recover attorney fees from the opposite party to the condemnation litigation did not exist at common law. The general rule is that attorney fees are not included in the term 'costs' or 'expenses' in the absence of some statutory provision, rule of court, or by contract of the parties. 20 Am.Jur.2d, § 72 Costs. In an annotation to the case of Tomten v. Thomas, 125 Mont. 159, 232 P.2d 723, 26 A.L.R.2d 1285, entitled 'Eminent Domain-attorneys fees' it is stated: 'With few exceptions, the courts in the cases in which the question has arisen have construed condemnation statutes which provided for payment of 'costs', 'expenses', 'just compensation,' and the like, without making any express stipulation as regards attorneys' fees, as not intending to provide for the payment of such fees, these not being part of the costs, expenses or just compensation.' (26 A.L.R.2d 1296, 1297). In support of this statement are cases cited from the courts of final resort of the United States, and the States of California, Iowa, Colorado, Massachusetts, Missouri, Montana, New Jersey, New York, Oregon, Pennsylvania and Wisconsin.

The State of Wisconsin has a constitutional provision as to the payment of 'just compensation' similar to the Georgia Constitution. In North America Realty Co. v. City of Milwaukee, 189 Wis. 585, 208 N.W. 489, it was held that such provision did not authorize attorney fees to the landowner in a condemnation proceeding. It was there said: 'The argument runs that, since expenses have to be incurred in condemnation proceedings, such expenses must be recovered in addition to the award in order that 'just compensation' for the land may be had. Practically, that is true. But it is equally true in nearly every other lawsuit. The prevailing party does not recoup his total expenses. He can tax only statutory costs, and they usually fall short of the actual costs of the litigant. In contemplation of law, however, statutory costs are full compensation, and when those are taxed in favor of the prevailing party he is presumed to be made whole.' See also City of Muskegon v. Slater, 379 Mich. 466, 152 N.W.2d 652.

The provision in the California Constitution as to eminent domain proceedings is the same as in our Constitution. In Pacific Gas & Electric Co. v. Chubb, 24 Cal.App. 265, 141 P. 36, the court said: 'Obviously the jury could not take into account attorney's fees as an element of property value or of damage to property not taken, and it has been so held. Mitchell v. Hawley, 79 Cal. 301, 21 P. 833; San Jose (& A.) R. Co. v. Mayne, 83 Cal. 566, 23 P. 522; Coburn v. Townsend, 103 Cal. 233, 37 P. 202. If the measure of compensation is to be the actual value of the land at the date the summons issues or at the date of the trial, and if this compensation is to be ascertained by a jury or a court sitting as a jury, and if the jury or court cannot take into account attorney's fees as an element of damage, it would seem to follow that the 'just compensation' contemplated by the Constitution is the value of the land taken, and the damage to land not taken and nothing more. 'Just compensation consists in making the owner good by an equivalent in money for the loss he actually sustains in the value of his property by being deprived of a portion of it.' Lafflin v. Chicago, etc., Co. (C.C.) 33 F. 415; Lewis, Em.Dom (2d Ed.) § 462. The adjective 'just' only emphasizes what would be true if omitted; namely, that the compensation should be equivalent of the property, and this compensation is 'for the property, and not to the owner.' Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463.'

'It has been held that the acquisition of property by eminent domain does not involve a taking of the legal services which are needed in order to establish the claim for compensation, unless provision is made therefor by statute a claimant is not entitled to reimbursement either for loss of time consumed in prosecuting his claim or for counsel fees nor may he recover witness fees.' Nichols on Eminent Domain § 8.64.

In construing the words 'just compensation' as used in the Fifth Amendment of the Federal Constitution, Mr. Justice Brewer in Monongahela Navigation Company v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 said: 'The language used in the fifth amendment in respect to this matter is happily chosen. The entire amendment is a series of negations, denials of right or power in the government; the last, (the one in point here) being: 'Nor shall private property be taken for public use without just compensation.' The noun 'compensation,' standing by itself, carries the idea of an equivalent. Thus we speak of damages by way of compensation, or compensatory damages, as distinguished from punitive or exemplary damages: the former being the equivalent for the injury done, and the latter imposed by way of punishment. So that, if the adjective 'just' had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective 'just.' There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken. And this just compensation, it will be noticed, is for the property, and not to the owner.'

We agree with the Court of Appeals that the ruling of this court when the case was first before us (221 Ga. 731, 738, 146 S.E.2d 884, to wit: 'The constitutional provision is susceptible to no construction except the condemnee is entitled to be compensated for all damages to his property and expense caused by the condemnation proceedings,' has no application here, in that 'expenses' there involved, were not 'expenses of litigation and attorneys fees.'

2. We have carefully reviewed the other assignments of error and do not find that any one of the rulings complained of demands or requires a reversal of the judgment of the Court of Appeals.

Judgment affirmed.

MOBLEY, P.J., GRICE, J., and THOMAS O. MARSHALL, Jr., Judge, concur.

UNDERCOFLER and HAWES, JJ., and A. R. KENYON, Judge, dissent.

NICHOLS and FELTON, JJ., being disqualified, Superior Court Judges A. R. KENYON and THOMAS O. MARSHALL, Jr., sat in their places.

HAWES, Justice (dissenting).

In my opinion, the majority of the court, in rendering this decision, has overlooked the principle that 'Protection to person and property is the paramount duty of government, and shall be impartial and complete' (Const., Art. I, Sec. I, Par. II; Code Ann. § 2-102), and has this day unnecessarily gone out of its way to perpetuate an injustice against condemnees, a result unwarranted by any Georgia case previously decided. The majority opinion recognizes, at least tacitly by its failure to cite any, that no previously decided Georgia case expressly holds that attorney's fees and fees paid to expert witnesses are not a part of just and adequate compensation.

When this case was first before this court, Justice Quillian, speaking for the court in a decision concurred in by four of the other Justices, held that, 'Art. I, Sec. III, Par. I of the Constitution (Code Ann. § 2-301) is susceptible to no construction except the condemnee is entitled to be compensated for all damage done to his property and expenses caused by the condemnation proceeding. Such damages and expenses are separate and distinct items from the amount which he is entitled to...