Chicago, M. & St. P. Ry. Co. of Idaho v. Trueman

• Decision Date: 28 November 1910
• Citation: 112 P. 210,18 Idaho 687
• Parties: CHICAGO, MILWAUKEE & ST. PAUL RY. CO. OF IDAHO, a Corporation, Appellant, v. WILLIAM TRUEMAN and ANNIE M. TRUEMAN, His Wife, and ALBERT WUNDERLICH and MILDRED WUNDERLICH, His Wife, Respondents
• Court: Idaho Supreme Court

112 P. 210

18 Idaho 687

CHICAGO, MILWAUKEE & ST. PAUL RY. CO. OF IDAHO, a Corporation, Appellant, v. WILLIAM TRUEMAN and ANNIE M. TRUEMAN, His Wife, and ALBERT WUNDERLICH and MILDRED WUNDERLICH, His Wife, Respondents

Supreme Court of Idaho

November 28, 1910

CONDEMNATION PROCEEDING-AWARD OF DAMAGES-AWARD BY COMMISSIONERS-DISMISSAL OF PROCEEDING-COSTS.

(Syllabus by the court.)

1. Sec 5228 of the Revised Codes, which is a part of the title on eminent domain, makes the general provisions of the Code relative to "civil actions" applicable to proceedings under the eminent domain title, except as otherwise specially provided; and sec. 4354 of the Rev. Codes dealing with actions generally, provides that, "An action may be dismissed or a judgment of nonsuit entered by the plaintiff himself, at any time before trial, upon the payment of costs: Provided, a counterclaim has not been made or affirmative relief sought by the cross-complaint or answer of defendant"; held, that the latter section is applicable to actions and proceedings in eminent domain and authorizes the plaintiff to dismiss an action in condemnation after the filing of a report by commissioners appointed to award the damages or at any time before trial.

2. A dismissal of an action as authorized by subd. 1 of sec. 4354 Rev. Codes, "is made by an entry in the clerk's register."

3. By the provisions of sec. 5227, Rev. Codes, costs in eminent domain cases "may be allowed or not, and if allowed may be apportioned between the parties on the same or adverse sides in the discretion of the court"; held, that where a plaintiff commences an action in condemnation and procures the appointment of commissioners and has a hearing, and the commissioners make an award and file their findings and report, and the plaintiff refuses to pay the award and thereafter dismisses the action, all costs usually taxed in civil actions should be taxed against the plaintiff, and that it would be an abuse of discretion not to do so under such circumstances, and that the provisions of the general statute relative to costs in "civil actions" would apply in such case.

4. Where a plaintiff in condemnation has, subsequent to the filing of the report of the commissioners appointed to assess the damages, dismissed the action under the provisions of subd. 1, sec. 4354, the defendants must file their memorandum of costs within five days after notice of the dismissal as provided by sec. 4912 of the Rev. Codes.

APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. Robert N. Dunn, Judge.

Proceeding in condemnation. Judgment on findings and report of commissioners and award of damages. From decree and judgment and order refusing to vacate decree and judgment plaintiff appealed. Reversed.

Reversed and remanded with direction. Costs awarded in favor of appellant.

J. L. McClear, Edwin McBee, and F. M. Dudley, for Appellant.

The claim for costs incurred in the proceedings before the commissioners is untenable. (5 Ency. P. & P. 110, and cases cited.) There is no statutory authority for charging witness fees or other expenses as costs in proceedings before commissioners appointed in a condemnation proceeding. (Secs. 5227, 6139, Rev. Codes.)

In McCready v. Rio Grande W. Ry. Co., 30 Utah 1, 83 P. 331, 8 Ann. Cas. 732, the supreme court of Utah construing sections of the Utah statute relating to costs, identical with secs. 5227 and 5228, Idaho Rev. Codes, held that the term "costs" includes only such costs and fees as are fixed and regulated by statute. (Bergman v. St. P. etc. R. Co., 21 Minn. 533, 534; City of St. Louis v. Menitz, 107 Mo. 611, 18 S.W. 30.)

The witnesses before the eminent domain commissioners were not "witnesses in civil actions in the district court or before any referee"; neither were they witnesses before a "commissioner thereof," within the meaning of sec. 6139. The attendance of witnesses before such forum is purely a matter of grace or favor from the witness to the one party or to the other. (San Jose etc. R. Co. v. Mayne, 83 Cal. 566, 23 P. 522.)

If, as respondents contend, the commissioners' report was a verdict or decision, then under sec. 4912 the cost bill should have been filed and served within five days after the making of the award, and the respondents, having failed to file such cost bill, waived all claim for such costs, even if a valid claim would otherwise have existed. (Cantwell v. McPherson, 3 Idaho 321, 29 P. 102.)

"In the absence of statutory provisions on the question, the effect of proceedings for condemnation is simply to fix the price at which the party condemning can take the property sought, and that even after confirmation or judgment the purpose of taking the property may be abandoned without incurring any liability to pay the damages awarded." (2 Lewis, Eminent Domain, 3d ed., sec. 955; 7 Ency. of P. & P. 674; 15 Cyc. 935; O'Neill v. Freeholders of Hudson, 41 N.J.L. 161, 172; Pool v. Butler, 141 Cal. 46, 74 P. 444; Denver etc. R. Co. v. Lamborn, 8 Colo. 380, 8 P. 582; Blackshire v. A. T. & S. F. R. Co., 13 Kan. 514; Chicago v. Hayward, 176 Ill. 130, 52 N.E. 26; Manion v. Louisville etc. R. Co., 90 Ky. 491, 14 S.W. 532, 533; Matter of Rhinebeck & C. R. Co., 67 N.Y. 243; St. L. & G. Ry. Co. v. C. G. & T. etc. Ry., 126 Mo.App. 272, 102 S.W. 1042; United States v. Dickson, 127 F. 774.)

The service and filing of the praecipe for the dismissal of the proceedings was a sufficient manifestation of appellant's purpose to abandon and discontinue the same. (2 Lewis, Eminent Domain, 3d ed., sec. 956.)

Aside from the discontinuance and abandonment of this proceeding, the court was without jurisdiction to enter the so-called judgment and decree of appropriation, for the reason that there had been no trial or judicial determination of the damages. Sec. 5215, Rev. Codes, provides that "all proceedings under this title must be brought in the district court."

The powers conferred by sec. 5219 are, in express terms, conferred upon the "court." By the provisions of sec. 5220 the testimony is to be heard, and the damages assessed, by "the court jury or referee." Upon the verdict of the jury, or the finding of the court or referee, if a jury be waived, the court is to enter a "final judgment." (Sec. 5223, Rev. Codes; Cal. So. Ry. Co. v. S. P. Ry. Co., 67 Cal. 59, 7 P. 123, 125, 126.)

Ezra R. Whitla, and Charles L. Heitman, for Respondents.

The statutes of this state provide for the dismissal of certain actions upon the payment of costs, but as the plaintiff admits in this action that it has not paid the costs, it cannot claim the right to dismiss. If it should claim the right to dismiss other than under the statutory proceedings, the only way this can be done is, as shown in the cases cited by the appellant itself, by making application to the court and securing an order therefor. (Grunert v. Speich, 114 Wis. 355, 89 N.W. 496.)

"The dismissal of civil actions in the district court is in the nature of a judgment and necessarily requires an order of the court therefor." (State v. Ludwig, 106 Wis. 226, 82 N.W. 158; Allen v. Dodson, 39 Kan. 220, 17 P. 667; Haskell v. Whitney, 12 Mass. 47; Wyatt v. Sweet, 48 Mich. 539, 12 N.W. 692.)

The appellant's showing admits that the motion for judgment was regularly served on the resident attorney, J. L. McClear, and that this service was proper, and no showing has been made which would warrant the court in setting aside the judgment on this ground. (Beck v. Lavin, 15 Idaho 363, 97 P. 1028.)

The right to discontinuance of a condemnation proceeding is not an absolute right, and the plaintiff, after having proceeded to condemn, has no right to come in and demand an absolute dismissal of the action, and an application for a discontinuance may be denied or equitable terms imposed. (Lewis, Eminent Domain, p. 670, and cases there cited; Drath v. B. & M. R. Co., 15 Neb. 367, 18 N.W. 717.)

The award of the appraisers in a condemnation proceeding is the adjudication of the damages by a competent tribunal, and if no proceedings are taken to vacate the award it becomes, to an extent, in the nature of a judgment. (Stauffer v. C. R. & M. R. Co., 33 Ind.App. 356, 70 N.E. 543; 2 Elliott on Railroad Law, par. 1045; E. & T. R. Co. v. McGrath, 74 Cal. 49, 15 P. 360.)

A leading case upon the question of a dismissal of a condemnation proceeding is that of Sprague v. N. P. Ry. Co., 122 Wis. 509, 106 Am. St. 997, 100 N.W. 842, decided under the statutes of Wisconsin, which appear to be more like the statutes of this state than any other.

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

A motion has been made to strike out certain portions of the transcript and motion has also been made to dismiss the appeal. We have examined these motions and have reached the conclusion that they are not well taken. The motions are denied.

This is an appeal from a final decree of condemnation and an order denying a motion to vacate and annul the decree. On the 24th day of January, 1908, the appellant company filed its complaint in the district court in and for Kootenai county praying the condemnation of the south thirty feet of lot 10, block 1, in the townsite of St. Maries, for railroad purposes. Summons was issued and served, and at the same time notice was served on the defendants, who are respondents here, that the plaintiffs would apply to the court for the appointment of commissioners to assess and determine the damages that defendants would sustain by reason of the condemnation of the land described in the complaint. Commissioners were thereafter duly appointed, and after a hearing at which plaintiffs and defendants were represented and introduced proofs, the commissioners made...