Dover Housing Authority v. Feeney

• Decision Date: 31 March 1975
• Docket Number: No. 7002,7002
• Citation: 335 A.2d 650,115 N.H. 138
• Parties: DOVER HOUSING AUTHORITY v. Herbert W. FEENEY et al.
• Court: New Hampshire Supreme Court

Page 650

335 A.2d 650

115 N.H. 138

DOVER HOUSING AUTHORITY v. Herbert W. FEENEY et al.

No. 7002.

Supreme Court of New Hampshire.

March 31, 1975.

Burns, Bryant, Hinchey, Cox & Shea, Dover and Shephen M. Presnell, Concord, (Mr. Presnell orally), for plaintiff.

Fisher, Parsons, Moran & Temple (Harold D. Moran, Dover, orally), for defendants.

DUNCAN, Justice.

In this condemnation proceeding, the plaintiff authority offered in February 1973 pursuant to RSA 498-A:4 (Supp.1973) to purchase the defendants' property in Dover for the sum of $58,000. The offer was not accepted, and the plaintiff filed a declaration of taking as provided by RSA 498-A:5 (Supp.1973). Pursuant to RSA 498-A:11 (Supp.1973) in August 1973 it paid the defendants the amount of its estimate of just compensation in the amount previously offered. The question of damages was assigned by the superior court to the eminent domain commission and after hearing, the commission awarded the defendants the sum of $64,000, which they accepted on March 18, 1974 without appeal. On May 8, 1974, their motion for costs consisting of expert witness fees was heard by the Superior Court (Dunfey, J.) and denied on May 20, 1974, upon the ground that costs incurred before the commission are not allowable. The defendants' exception was reserved and transferred.

The defendants rest their case upon the holding of this court in Hayes v. State, 109 N.H. 353, 252 A.2d 431 (1969) and upon RSA 525:14-a, the general statute relating to costs. Hayes v. State, supra was an appeal to the superior court under RSA 233:17 from an assessment of damages by a highway layout commission. Since that statute expressly provided for the allowance of costs 'to the prevailing party' (RSA 233:17) it was held that costs were allowable against the State in accordance with RSA ch. 525. Similar provisions appear in the eminent domain procedure act. RSA 498-A:27 (Supp.1973) provides for a hearing de novo, on appeal to the superior court from an award by the eminent domain commission, and authorizes the court on reassessment of the damages to 'award costs to the prevailing party.' State v. Wilson, 115 N.H. --, 333 A.2d 459 (Decided February 28, 1975).

The defendants' right to costs in the present case, however, is not governed by section 27, of the act, since they have accepted the award of the eminent domain commission, without appeal. Hence they are faced with the settled principle that costs may not be awarded against the State 'unless the statute provides for it expressly or by reasonable implication.' Public Service Co. v. State, 102 N.H. 54, 149 A.2d 874 (1959); accord, D'Amours v. Hills, 96 N.H. 498, 79 A.2d 348 (1951); Holte v. Rondeau, 105 N.H. 304, 306, 199 A.2d 100, 101-02 (1964); N. H. Water Resources Board v. Pera, 108 N.H. 18, 226 A.2d 774 (1967); Tau Chapter v. Durham, 112 N.H. 233, 293 A.2d 592 (1972).

The eminent domain procedure act (RSA ch. 498-A (Supp.1973)), had its origin in House bill 770, introduced at the 1971 legislative session, pursuant to recommendations of the Interim Commission to Study Laws of Eminent Domain established by the 1969 legislature. As previously noted a decade earlier, the statutes relating to eminent domain provided eleven different condemnation procedures, which were incorporated by reference in at least twenty other sections of the statutes. Manchester Housing Authority v. Fisk, 102 N.H. 280, 155 A.2d 186 (1959). House bill 770 was designed to unify these statutory proliferations by establishing a single tribunal to determine damages in all eminent domain proceedings, subject to review on questions of law only. Manias, Eminent Domain Procedure and the Commission System, 14 N.H.B.J. 61 (1972).

The bill as filed contained no provision for appeal to the superior court from an award by the eminent domain commission (Cf. RSA 498-A:27 (Supp.1973)), and no provision for the allowance of costs against the State, except in case of termination of the proceedings without condemnation as a result of preliminary objections by the condemnee. The latter provision, after minor amendment by the house of representatives (N.H.H.Jour, 1182-84 (1971)), appeared in section 9 of the statute as originally enacted in 1971. It provided that upon termination without condemnation, the condemnee should be entitled to 'damages including costs and expenses, to be determined by the commission . . ..' Laws 1971, 526:1, 498-A:9 subd. V.

By action of the senate in 1971, sections 27 through 29 of the bill were stricken, and new sections 27 and 28 inserted, the first of which provides for the allowance of costs on appeal after hearing by the court. N.H.S.Jour. 1544 (1971); Laws 1971, 526:1, 498-A:27, 28.

In 1973 (Laws 1973, 256:8) section 9 of the 1971 act was repealed, so that the...