State by Spannaus v. Carter

• Decision Date: 02 August 1974
• Docket Number: No. 44593,44593
• Citation: 300 Minn. 495,221 N.W.2d 106
• Parties: STATE of Minnesota, By Warren SPANNAUS, Its Attorney General, Respondent, v. Elmer M. CARTER, et al., Appellants.
• Court: Minnesota Supreme Court

Page 106

221 N.W.2d 106

300 Minn. 495

STATE of Minnesota, By Warren SPANNAUS, Its Attorney General, Respondent, v. Elmer M. CARTER, et al., Appellants.

No. 44593.

Supreme Court of Minnesota.

Aug. 2, 1974.

Syllabus by the Court

1. The allowance of attorneys fees to a landowner in an eminent domain proceeding is not required by either the Fifth Amendment of the United States Constitution nor Article 1, § 13, of the Minnesota Constitution.

2. It is for the legislature to decide when costs and disbursements and when attorneys fees are to be allowed in civil litigation.

Erickson, Zierke, Kuderer, Utermarck & McKenna and Charles R. Zierke, Fairmont, for appellants.

Warren Spannaus, Atty. Gen., Eric B. Schultz, Deputy Atty. Gen., William A. Caldwell, Sp. Asst. Atty. Gen., St. Paul, for respondent.

Heard before MacLAUGHLIN, YETKA, and SCOTT, JJ., and considered and decided by the court.

YETKA, Justice.

This is an appeal from an order of the district court denying defendant landowners' motion for allowance of reasonable attorneys fees incurred during litigation of eminent domain proceedings which culminated in a jury award in excess of both the initial amount offered by the plaintiff condemnor and the amount awarded by the condemnation commissioners. We affirm.

The issue is clearly drawn. Does the Fifth Amendment of the United States Constitution or Article 1, § 13, of the Minnesota Constitution require that attorneys fees be awarded to the condemnee as an element of 'just compensation' in eminent domain proceedings carried through to completion?

Defendants have advanced numerous arguments in support of their contention in this appeal. However, the overwhelming majority of courts in this country has held that attorneys fees are not an element of 'just compensation' ¹ and thus may not be awarded to the condemnee unless authorized by appropriate legislation. ²

Historically, in Minnesota attorneys fees, as a general rule, have not been allowed except where authorized by a contract between the parties or by statute. Midway Nat. Bank v. Gustafson, 282 Minn. 73, 82, 165 N.W.2d 218, 224 (1968).

This court has also held that in eminent domain cases the allowance of costs and disbursements is purely statutory. State, by Burnquist, v. Miller Home Development, Inc., 243 Minn. 1, 7, 65 N.W.2d 900, 903 (1954). That the Minnesota Legislature has considered attorneys fees in eminent domain cases as a legislative matter is quite apparent from statutory provisions allowing attorneys fees only in certain specific instances. ³

We are not unmindful of the plight of the landowner who may be forced to obtain counsel to protect his rights when his property is condemned for public use. In every case, he is an involuntary party to the proceedings and, in many instances, is a reluctant litigant when he refuses to accept the state's offer or the award of the commissioners. Reform in this area appears long overdue. As a taxpayer, a landowner bears part of the expense of the very proceedings brought against him by the state, which includes representation on behalf of the state by the attorney general. Yet, the landowner must bear the cost of his own legal counsel. Appellants' arguments are eloquent and persuasive, but they should be directed to the legislature, not the courts.

Affirmed.

1 Federal: Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930); United States v. 2,353.28 Acres of Land, 414 F.2d 965 (5 Cir. 1969); United States v. 15.3 Acres of Land, 158 F.Supp. 122 (M.D.Pa.1957).

State: County of Los Angeles v. Ortiz, 6 Cal.3d 141, 98 Cal.Rptr. 454, 490 P.2d 1142 (1971); Leadville Water Co. v. Parkville Water Dist. 164 Colo. 362, 436 P.2d 659 (1967); 9.88 Acres of Land v. State, 274 A.2d 139 (Del.1971); Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971); State v. Davis, 53 Haw. 582, 499 P.2d 663 (1972); State v. Holder, 295 N.E.2d 799 (Ind.1973); City of Ottumwa v. Taylor, 251 Iowa 618, 102 N.W.2d 376 (1960); Gault v. Board of County Commrs., 208 Kan. 578, 493 P.2d 238 (1972); State, Dept. of Highways, v. Salemi, 249 La. 1078, 193 So.2d 252 (1966); City of Muskegon v. Slater, 379 Mich. 466, 152 N.W.2d 652 (1967); Manchester Housing Authority v. Belcourt, 111 N.H. 367, 285 A.2d 364 (1971); State, by Commr. of Transportation, v. Mandis, 119 N.J.Super. 59, 290 A.2d 154 (1972); City of Buffalo v. J. W. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 (1971); Lamar v. Urban Renewal Agency, 84 Nev. 580, 445 P.2d 869 (1968); In re Condemnation of Property of Kling, 433 Pa. 118, 249 A.2d 552 (1969); North America Realty Co. v. City of Milwaukee, 189 Wis. 585, 208 N.W. 489 (1926). Contra, Dade County v. Brigham, 47 So.2d 602 (Fla.1950).

2 County of Los Angeles v. Ortiz, Supra; 9.88 Acres of Land v. State, Supra.

3 Minn.St. 117.045 provides: 'If a person successfully brings an action compelling an acquiring authority to initiate eminent domain proceedings relating to his real property which was omitted from any current or completed eminent domain proceeding, such person shall be entitled to petition the court for reimbursement for his reasonable costs and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred in bringing such action. Such costs and expenses shall be allowed only in accordance with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat. 1894 (1971), any acts amendatory thereof, any...