Shterk v. Veitch
| Decision Date | 12 January 1917 |
| Docket Number | 20,143 - (133) |
| Citation | 160 N.W. 863,135 Minn. 349 |
| Parties | JOHN SHTERK v. W. P. VEITCH |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county under G.S. 1913 § 8090, to recover $795.36 as treble damages for timber unlawfully cut from plaintiff's land. Defendant's appeal from the taxation of costs and disbursements was heard by Hughes, J., and affirmed. From the judgment entered pursuant to the order for judgment, defendant appealed. Modified.
Taxable disbursements -- survey and estimate of timber.
Plaintiff in preparing for the trial of an action involving the location of the correct line between his land and that of defendant, paid civil engineers for a survey of his land, and a timber cruiser for an estimate of the timber cut and taken from his land by defendant. It is held that the sums so paid are not taxable as disbursements against defendant.
M. H. McMahon and J. H. Peregrine, for appellant.
James J. Giblin, for respondent.
Defendant appeals from that part of the judgment against him which allows plaintiff to recover as disbursements an item of $70 paid to civil engineers for a survey of his land, and an item of $15 paid to a cruiser for estimating timber alleged to have been taken therefrom by defendant. The only questions involved are as to whether the respective items were properly taxed as necessary disbursements in the action.
Plaintiff owned an 80-acre tract in St. Louis county and defendant had the right to cut and remove timber from the adjoining 80. There was a dispute between them as to the dividing line, and the action was brought to recover damages for trees and timber cut and carried away by defendant from the strip in dispute. The issue was as to where the correct dividing line was. Plaintiff had a verdict for $130.70. In his bill of costs plaintiff set out the two items and in his affidavit of disbursements stated that in preparing for the trial of the action it became necessary for him to procure a survey of his 80 "in order to ascertain how much of said land was trespassed upon by the defendant," and that to that end he employed civil engineers to make the survey; that it became necessary for him to employ a timber estimator to ascertain how much timber had been taken by defendant, that he employed such estimator, and that the sums paid for the survey and for the services of the estimator were just and reasonable. Defendant objected to the taxation of the two items, on the ground that neither was "properly or legally taxable as a part of the costs and disbursements," and on the further ground, not involved on this appeal, that the items were excessive in amount. The clerk taxed the items as proper disbursements, and on appeal the court affirmed the action of the clerk. Judgment was entered and this appeal taken.
The trial court proceeded on the theory that as it was necessary for plaintiff, in the preparation of his case for trial, to have a survey made by a competent engineer, and, as plaintiff actually paid out the amount charged, he ought to be entitled to recover the same as a necessary disbursement in the action. On the same reasoning the taxation of the amount paid for estimating the timber was upheld.
The statute (G.S. 1913, § 7976), provides that "in every action in the district court the prevailing party shall be allowed his disbursements necessarily paid or incurred." This is broad language, and, construed liberally, would include every expense of the prevailing party in the trial and in preparing for trial, amounts paid by a party in hunting testimony, traveling expenses of himself and his attorneys, amounts paid experts in another profession for assistance in preparation or help in trying the case, even attorney's fees. All such disbursements and many more that might be mentioned are in a broad sense necessarily paid or incurred in many cases tried in the courts. But it has never been suggested that such expenses could be taxed against the defeated party. In the instant case we cannot say that the disbursements were not "necessarily paid" in the preparation of plaintiff for trial, as it would involve holding that the finding of the trial court that they were is not sustained by the evidence -- manifestly an unsound conclusion. But it seems to us that we ought to say that such disbursements as these are not taxable, that the statute should not be construed to cover them. We have suggested the chief reason for this conclusion, the impossibility of drawing the line, and it is needless to call attention to the abuses that would likely result from holding such disbursements taxable. Strangely enough there is a lack of controlling authority in this state. In ...
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