St. Louis Railway Company v. Southern Railway Company
| Decision Date | 03 April 1897 |
| Parties | St. Louis Railway Company v. Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Affirmed.
John A Gilliam for appellant.
(1) There was no cause of action stated in the petition. By a species of what may with all due respect to the court perhaps be termed judicial legislation, it has been decided in this State, where an effort to condemn private property was made that upon the dismissal of the condemnation proceedings the property owner, in addition to the costs of the case, which are determined by statute, could recover attorney's fees expended in the case. St. Louis v. Meintz, 107 Mo. 611; Leisse v. Railroad, 72 Mo. 561; Lewis on Em. Domain [Ed. 1888], sec. 658; Mills on Em. Domain [2 Ed. 1888], sec. 311-313; Randolph on Em. Domain, sec. 199-282, 283, 284; Simpson v. Kansas City, 111 Mo. 237. (2) Furthermore, the action contemplated was in pursuance of the constitutional rights of the city, article 10, charter of St. Louis, its contractual rights with St. Louis Railroad Company, ordinance 12477, which have been fully decided by this court in Railroad v. Railroad, 105 Mo. 577 (see opinion of Thomas, J.). According to the opinion of Judge Thomas and case of Railroad v. Railroad, 19 Am. Law Reg. 765, this case had but one element of an eminent domain case, that of settling the compensation, and therefore should not be subject to all the incidents of eminent domain cases. Railroad v. Railroad, 105 Mo. 562; Railroad v. Railroad, 105 Mo. 577; Black v. Mayor, etc., of Baltimore, 50 Md. 235; 56 Md. 333. (3) The damages were excessive, and the court's instructions given thereon were erroneous. The services of respondent's counsel were nearly all rendered before January 1, 1890, according to Mr. Galt's own testimony, and with the single exception of the filing of a general denial they were all directed against the utility and constitutionality of the proceeding. Neither he nor any of his witnesses would separate his work, or give an opinion as to the value of that part directed only to getting a just compensation. Folmar v. Folmar, 71 Ala. 136; Randolph on Em. Domain, sec. 282; Railroad v. Railroad, 100 Mo. 59; Railroad v. Railroad, 105 Mo. 562; Railroad v. Railroad, 105 Mo. 577; Randolph on Em. Domain, sec. 284.
Smith P. Galt for respondent.
(1) The verdict was not excessive. Defendant in the condemnation proceeding had the right to defend against the same upon its merits and it was the duty of counsel to raise in defendant's behalf every material question of law and fact to that end. It is not pretended that any point raised, or action taken by defendant's counsel, was frivolous. (2) The "instrument of abandonment," offered in evidence by defendant here, was properly excluded. It was incompetent. It was merely an ex parte statement of defendant, and a party can not make evidence for itself in that way. If the statements contained in it were facts, and were relevant, defendant had a legal method of proving them aliunde. (3) Defendant's third instruction was properly refused because there was no evidence whatever tending to prove that the legal services rendered plaintiff were "merely obstructive of the proceedings, * * * or to prevent competition in the carrying of passengers." (4) When a railroad corporation attempts to exercise the power of eminent domain, and decides to acquire property not by purchase but by condemnation, on the ground that it is necessary for its use, and ostensibly prosecutes proceedings for that end, it is liable to the property owner at least for his expenses incurred in defending the action, in case it changes its mind, and concludes that it does not want it, or won't take it, and abandons the proceeding. Railroad v. Lackland, 25 Mo. 515; Railroad v. Reynal, 25 Mo. 534; City of St. Joseph v. Hamilton et al., 43 Mo. 282; Leisse v. Railroad, 2 Mo.App. 105, and 72 Mo. 561; Graff v. Mayor & C. C. of Baltimore, 10 Md. 522; Van Valkenburgh v. City of Milwaukee, 45 Wis. 574. (5) Defendant's fourth instruction was properly refused, because defendant's liability does not depend upon whether its condemnation proceedings were "unreasonably delayed or oppressively prolonged;" but on what was worse, their total abandonment.
This is a suit to recover damages on account of the expense of employing counsel in defending a condemnation proceeding prosecuted by plaintiff against defendant. Plaintiff and defendant are each corporations owning and operating street railways in the city of St. Louis. In 1889 a part of plaintiff's railway, with two tracks, was located along and upon Broadway in said city. Defendant secured from the city the right to extend its road along the same street and that portion thereof occupied by plaintiff's road. Defendant desired, and claimed the right to use the tracks of plaintiff upon which to run its cars. This right plaintiff disputed. To enforce the right claimed, and to have compensation for the use ascertained, defendant commenced a proceeding of condemnation in the circuit court. This suit plaintiff vigorously defended, denying the right of defendant to exercise the power of eminent domain, denying the power of the city to grant the right to defendant to use its track, and denying the right of one public corporation to interfere with the franchises of another. These defenses were all overruled by the court and commissioners were appointed to assess the damages. The question of the amount of the damages was fought out before the commissioners and their award was deemed by the plaintiff as excessive and it filed exceptions to the report. Before the exceptions were passed upon by the court defendant dismissed the proceedings. The numerous defenses were made by counsel employed by plaintiff.
On the trial in this case each party offered evidence tending to prove the value of the legal services rendered in the condemnation proceedings. This evidence consisted chiefly of the opinions of expert witnesses. The opinions as to the value ranged from $ 500 to $ 5,000.
The instructions asked by each party required the jury to find the value of the legal services rendered. The jury returned a verdict in favor of plaintiff for $ 4,000, and from a judgment rendered for that amount defendant appealed.
Defendant insists that the expense incurred in the employment of counsel in such proceedings is not recoverable; that such expenses, if recoverable, should only include that incurred in ascertaining the amount of the damages; and that the damages are excessive.
I. On the question whether, on dismissal of proceedings to appropriate land to public uses, the landowner is entitled to recover of the ex-propriator, counsel fees paid by him in making defense against the appropriation, the decisions in the different jurisdictions are not uniform. This want of uniformity, on examination, will be found to result rather from the difference of statutory provisions, than from want of harmony in the general principles of law. It must be agreed that the generally accepted rule is, that the right to recover the expenses of the litigation, as well as legal costs, in any case, must be determined from a common law standpoint, unless otherwise provided by statute. Lewis on Eminent Domain, sec. 658; Randolph, Em. Dom. 282-284, and cases cited.
The rule at common law is that the successful party is only entitled to recover his taxable costs in which the fees he pays counsel are not included. "In general," says Sedgwick, "the law considers the taxed costs as the only damages which the party sustains by the defense of the suit against him, and these he recovers by the judgment in his favor." 1 Sedgwick on Damages, sec. 229.
Except in some special cases, counsel fees are not recoverable as costs under our statutes; such fees are not included in general provisions for the payment of costs, nor are they specially included under the chapter regulating proceedings for the appropriation of land for public uses.
Was the question of the recovery of such expenses on dismissal of condemnation proceedings a new one in...
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