State by Burnquist v. Miller Home Development

• Decision Date: 06 August 1954
• Docket Number: No. 36130,36130
• Citation: 243 Minn. 1,65 N.W.2d 900,50 A.L.R.2d 1377
• Parties: , 50 A.L.R.2d 1377 STATE by BURNQUIST v. MILLER HOME DEVELOPMENT, Inc. et al.
• Court: Minnesota Supreme Court

Page 900

65 N.W.2d 900

243 Minn. 1, 50 A.L.R.2d 1377

STATE by BURNQUIST v. MILLER HOME DEVELOPMENT, Inc. et al.

No. 36130.

Supreme Court of Minnesota.

Aug. 6, 1954.

Syllabus by the Court.

1. The prevailing party who must be awarded his costs and disbursements under M.S.A. § 117.20(2) is the party who prevailed upon, or succeeded with respect to, the particular issues raised and determined by the appeal to the district court and not the party who ultimately prevails upon the completion of the entire condemnation proceeding.

2. In the special proceeding of eminent domain, the allowance of costs and disbursements is purely statutory and they may be awarded only as expressly authorized and as prescribed by statute.

3. Section 117.20(2), which authorizes an award of costs and disbursements against a landowner who has not prevailed upon an appeal, is constitutional, and the award of such costs and disbursements does not impair the landowner's right to the 'just compensation' guaranteed to him by Minn.Const. art. 1, § 13, and by U.S.Const. Amend. XIV.

4. Section 117.16 applies where there are severable controversies in the same proceeding and the subject of one of them is removed from litigation by dismissal.

5. Where only part of the dominant tenement is taken, or where the right of access alone is taken, the issue as to the taking of the right of access involves an independent and severable controversy, and when the proceeding is dismissed or discontinued as to such right of access but continued as to a part of the dominant tenement, the landowner is entitled to his costs and expenses as provided by § 117.16.

Samuel P. Halpern, Minneapolis, Catherwood, Hughes & Alderson, Austin, for appellants.

J. A. A. Burnquist, Atty. Gen., Louis B. Brechet, Deputy Atty. Gen., John M. Sharp and Bert McMullen, Sp. Asst. Attys. Gen., for respondent.

MATSON, Justice.

Appellants appeal from an order taxing costs and disbursements against them in a condemnation proceeding brought by the state.

The state petitioned the district court to condemn certain parcels of land in Mower county for trunk highway purposes. Notice of the hearing thereon was sent to the affected parties including the appellants herein, who are owners of a tract which in part was to be taken and which part was described in the petition as 'Parcel 12.' Included in the petition was a request for the taking of A right of access from that part of the appellants' tract which was not to be taken. A hearing was held on May 12, 1952, at which the appellants filed written objections to the taking of parcel 12. Subsequent to the hearing the appellants withdrew their objection in return for a stipulation reducing the size of the parcel to be taken and providing for the abandonment of the proposed taking of the right of access. A new description in accord with such reduction and abandonment was then substituted for the one contained in the original petition, and on that basis the court approved the condemnation and appointed commissioners to meet and ascertain the damages occasioned by the taking.

The commissioners made an award of $42,264 to the appellants. Subsequently, both the state and appellants appealed to the district court from the award, and on January 24, 1953, the jury assessed the damages due appellants at $39,559. Thereafter, the state moved the court for an order allowing it to tax costs and disbursements and witness fees against appellants, and appellants in turn moved to be allowed to tax their costs, disbursements, and witness fees against the state. In addition, appellants further moved the court for an order allowing them to tax costs, expenses, and fees of counsel incurred In defending the taking of the right of access--the taking of which had been abandoned by the stipulation.

The court denied appellants' motion in its entirety, granted the state's motion, and ordered taxation of costs and disbursements against the appellants consisting of $956.60 in expert witness fees. Appellants appealed from this order.

We are concerned with the following issues:

(1) Is the prevailing party, for the purpose of awarding costs and disbursements pursuant to M.S.A. § 117.20(2), the litigant who prevails on the issues determined by an appeal from the award of the commissioners to the district court, or is he the litigant who irrespective of such appeal ultimately prevails in the eminent domain proceeding as a whole?

(2) Is a statute which authorizes an award of costs and disbursements against a landowner who has not prevailed upon an appeal unconstitutional because an award of such costs and disbursements operates to diminish the amount of 'just compensation' guaranteed to said landowner by Minn.Const. art. 1, § 13, M.S.A.?

(3) Where, with respect to the proposed taking of a tract of land, the amount of land to be taken by the state is reduced by a stipulation which also provides for the abandonment of the taking of A right of access from the land not to be taken, does such abandonment of the right of access relate to a severable controversy with respect to which the condemnee is entitled to costs and expenses, inclusive of attorney's fees, as provided in § 117.16?

1. In eminent domain proceedings instituted by the state wherein an appeal is taken to the district court from the award of the commissioners, is the Prevailing party, for the purpose of awarding costs and disbursements pursuant to § 117.20(2), the litigant who prevails with respect to the particular issues raised and determined by such appeal, or is the prevailing party the litigant who ultimately prevails in the entire condemnation proceeding in and of which the appeal to the district court is but one of a series of authorized procedural steps? We are here concerned with § 117.20(2) which expressly states that 'upon appeal (to the district court) the prevailing party shall recover costs and disbursements.' In construing statutory language the former law, including other laws upon the same or similar subjects, may be considered. § 645.16(5). Prior to 1905 the statute governing appeals to the district court specifically provided (without using the words 'prevailing party') that, if the landowner appealed and the award to him of damages was increased, he should recover costs, and if the award was not increased, he should pay the costs. The statute similarly provided that if the state appealed and did not secure a decrease in the award it should pay the costs, but if it did secure a decrease the landowner should pay costs. See, G.S.1894, § 4088. In 1905 what is now M.S.A. § 117.14 was enacted providing that the court could award costs to the Prevailing party at its Discretion. In 1927 what is now § 117.20 was enacted providing that, in cases where the state was the condemnor, the costs on appeal Shall be awarded the 'prevailing party.' In the light of the words of the 1894 statute, § 4088, it seems clear that, when the words 'prevailing party' were first adopted in 1905 in enacting the progenitor of § 117.14 and again in 1927 in enacting the progenitor of § 117.20, the legislature intended such words to designate the party who was successful with respect to the immediate and particular issues determined by the appeal. In effect we so held in State ex rel. Hilton v. Claydon, 167 Minn. 505, 209 N.W. 326, with respect to the 1905 progenitor of § 117.14. In other decisions this court has impliedly used the words 'prevailing party' with the same meaning. ¹ We can only conclude that the prevailing party who must be awarded his costs and disbursements under § 117.20(2) is the party who prevailed upon, or succeeded with respect to, the particular issues raised and determined by the appeal to the district court and not the party who ultimately prevails upon the completion of the entire condemnation proceeding. ² The state was here the prevailing party on the appeal since it obtained a reduction in the landowner's damages from $42,264 to $39,559.

Appellants contend, however, that they are nevertheless entitled to their costs and disbursements under Rules of Civil Procedure, Rule 68.01 (offer of judgment) and Rule 68.02 (tender of money in lieu of judgment). We need not determine whether these sections have any application to special proceedings of eminent domain ³ since no offer of judgment or tender of money in lieu of judgment within the meaning of these sections was made in these proceedings. ⁴

2--3. We come to the primary question of the constitutionality of § 117.20(2) pursuant to which costs and disbursements were allowed against the landowner. May the costs and disbursements of the prevailing-party condemnor, incurred on an appeal from the award of the commissioners, be constitutionally assessed against the landowner without diminishing, and therefore without impairing his constitutional right to, the 'just compensation' as guaranteed by Minn.Const. art. 1, § 13? Fundamentally the issue is whether the constitutional guarantee of 'just compensation' means that the owner shall receive the entire amount of damages awarded to him by the jury without any deduction for costs and disbursements or that he shall receive the amount of the verdict minus such costs and disbursements. On this issue the authorities are in conflict. ⁵ Although some jurisdictions hold that the constitutional words 'just compensation' require that the condemnor pay the costs on appeal, no matter who prevails, ⁶ that has not been the view of this court. We have consistently held that, in the special proceeding of eminent domain, the allowance of costs and disbursements is purely statutory and that they may be awarded only as expressly authorized and as prescribed by statute. ⁷

Our decisions, and especially that of State ex rel. Turnblad v. District Court, 87 Minn. 268, 91 N.W. 1111, indicate that we have treated the taxation and allowance of costs and disbursements as a procedural element and not a matter of substance...