State, By and Through State Highway Commission v. Stockhoff

• Decision Date: 20 June 1974
• Citation: 524 P.2d 1240,18 Or.App. 233
• Parties: State of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, et al., Appellants, v. Gene G. STOCKHOFF et al., Respondents. . On Respondents' Petition for Review Filed
• Court: Oregon Court of Appeals

Page 1240

524 P.2d 1240

18 Or.App. 233

State of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, et al., Appellants, v. Gene G. STOCKHOFF et al., Respondents.

Court of Appeals of Oregon.

On Respondents' Petition for Review Filed June 20, 1974. Decided July 29, 1974.

George H. Corey, Steven H. Corey, and Corey, Byler & Rew, Pendleton, for respondents.

No appearance contra.

Before SCHWAB, C.J., and FORT and TANZER, JJ.

TANZER, Judge.

Respondents petitioned for review contending that we erred in denying their motion for attorney fees on appeal in this condemnation case.

Attorney fees are available to a successful litigant only when so provided by the Constitution or by statute. The rule applies with full force to condemnation suits. Multnomah County v. Burbank, 235 Or. 616, 618, 386 P.2d 444 (1963).

This suit was commenced on June 28, 1971. Defendants point to former ORS 366.380(9), applicable to actions commenced prior to September 9, 1971, as the statutory source of the court's authority to award attorney fees on appeal. That section, however, applies to attorney fees for trial. Highway Commission v. Hursh, 245 Or. 378, 422 P.2d 266 (1966). No other statutes authorize such fees and the constitutional prohibitions against public taking, Art. I, § 18, and Art. XI, § 4, Oregon Constitution, do not of themselves authorize such fees. Re Petition of Reeder, 110 Or. 484, 495, 222 P. 724 (1924).

The mandate will issue without provision of reasonable attorney fees.