Tomten v. Thomas

• Decision Date: 12 June 1951
• Docket Number: No. 9022,9022
• Citation: 125 Mont. 159,232 P.2d 723,26 A.L.R.2d 1285
• Parties: , 26 A.L.R.2d 1285 TOMTEN v. THOMAS et ux.
• Court: Montana Supreme Court

Page 723

232 P.2d 723

125 Mont. 159, 26 A.L.R.2d 1285

TOMTEN v. THOMAS et ux.

No. 9022.

Supreme Court of Montana.

June 12, 1951.

W. B. Leavitt, Miles City, for appellants.

Farr & Colgrove, Miles City, for respondent.

ADAIR, Chief Justice.

This was a condemnation proceeding by M. E. Tomten, plaintiff, to acquire a private way of necessity over land belonging to Mr. and Mrs. Henry Thomas, defendants. The jury's verdict was for plaintiff. It found the necessity of the road and assessed $250 as the amount of all damage to be sustained by the defendants by the opening thereof.

Defendants filed a memorandum of their costs and disbursements within the time prescribed by R.C.M.1947, section 93-8619. The cost bill included an item of $750 for attorneys' fees for defendants' counsel. This item was disallowed on plaintiff's motion to retax.

From the decree adjudging to plaintiff the right to acquire the three described narrow strips of land, for a private way of necessity, upon the payment to defendants of the $250 damages found by the jury together with the sum of $168.08 as allowable and taxable costs and expenses incurred by defendants in the defense of the action, defendants have appealed.

The property involved is grazing and farm land. At, and for many years prior to, the time plaintiff acquired his lands there was an old road leading thereto from the main public highway. This road crossed a portion of adjacent lands thereafter acquired by defendants. In going to and from his holdings plaintiff must travel the road in question. There is no other practicable or feasible means of access to his lands.

In 1947 defendants closed the aforesaid road,--fenced plaintiff in and forbade his crossing of their lands. Plaintiff sought to reach an agreement with defendants but they would neither consent to the opening of the road nor to the crossing of their property. Without access thereto plaintiff's lands are worthless.

The Constitution of Montana provides that private property may be taken for private ways of necessity. Const. Art. III, § 15. Constitutional provisions of this character are not unusual. Compare: Cienega Cattle Co. v. Atkins, 59 Ariz. 287, 126 P.2d 481; Solana Land Co. v. Murphey, 69 Ariz. 117, 210 P.2d 593, 596; Maricopa County Municipal Water Conservation Dist. No. 1 v. Warford, 69 Ariz. 1, 206 P.2d 1168; State ex rel. Polson Logging Co. v. Superior Court, 11 Wash.2d 545, 119 P.2d 694; State ex rel. Sherman Creek Land & Irrigation Co. v. Superior Court, 148 Wash. 680, 270 P. 104; State ex rel. White Pine Sash Co. v. Superior Court, 143 Wash. 687, 255 P. 1025; State ex rel. Colyn v. Superior Court, 132 Wash. 411, 232 P. 282; Meyer v. Colorado Central Coal Co., 39 Wyo. 355, 271 P. 212, 274 P. 1074.

Under this provision and the statutes enacted to implement same, an owner of land has the right to acquire a private way of necessity for ingress and egress when his land is so with respect to lands of others that it is physically inaccessible to a public highway. R.C.M.1947, §§ 32-1401, 93-9902, subd. 6, 93-9904 and 93-9923. Compare State ex rel. Huntoon v. Superior Court, 145 Wash. 307, 260 P. 527, holding that such provisions are not violative of any rights guaranteed by the state or federal Constitution. See Komposh v. Powers, 75 Mont. 493, 244 P. 298.

Defendants urge that the right to condemn each of the three strips of land must be considered separately. However it appears that each strip is necessary to admit ingress and egress between plaintiff's land and the public highway and, having established his right to a way of necessity over defendants' lands, plaintiff was entitled to have access to all and not just an isolated part of his holdings. A right of way of necessity established under condemnation statutes such as are here involved 'becomes and open public way which may be traveled by any person who desires to use it. Lewis, Eminent Domain, Third Edition, Vol. 1, Sec. 260. Hence the term 'private way of necessity' is really a misnomer. Sherman v. Buick, 32 Cal. 241, 91 Am.Dec. 577.' Solana Land Co. v. Murphey, supra [69 Ariz. 117, 210 P.2d 598]. Compare Komposh v. Powers, supra.

Defendants complain that at places the condemned strips are only thirty-three to forty feet in width while elsewhere they are sixty feet in width but it appears that such extra width is necessary at places where the terrain is rough, broken and eroded necessitating extra grading and filling of the road to make it unable.

Defendants urge that it was error for the trial court to give its instruction No. 6 and to reject defendants' offered instruction No. 1. The instruction given is substantially in the language of sections 93-9902 and 93-9905 of the Codes and correctly advises the jury that before they could find for plaintiff they must first determine the necessity of taking all three of the described strips of land. The rejected instruction was to the effect that should plaintiff fail to prove that any of the strips was not necessary or practical for the proposed road, then the jury should find for defendants. The instruction given adequately covered the point of law stated and defendants' proposed instruction was properly rejected.

The last item listed in defendants' memorandum of costs and disbursements reads: 'Expenses incurred and for which the defendants are liable for attorney fees for services rendered by W. B. Leavitt, Attorney at Law, Miles City, Montana, in connection with the preparation of the defense and defending said action upon the trial thereof and all legal services rendered in connection with said action--$750.00'

Defendants complain of the disallowance of the claimed attorney's fee and the striking of such item from their bill of costs.

'Under the rule which has always prevailed in this jurisdiction, no costs can be allowed either party, except such as are provided for by statute. Under this rule, we must look to the statute in order to determine whether the items in question are chargeable.' Montana Ore Purchasing Co. v. Boston, etc., Min. Co., 27 Mont. 288, 323, 70 P. 1114, 1126.

'It is only where provided for specially by statute, or by agreement of the parties, that attorneys' fees may be considered at all as an item of recovery incident to litigation.' In re Mickich's Estate, 114 Mont. 258, 280, 136 P.2d 223, 232.

Section 15 of Article III of the Constitution, so far as material, reads: 'Private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited.'

R.C.M.1947, section 32-1401, provides: 'Private roads may be established in the manner provided in sections 93-9901 to 93-9926. But in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof must be first determined by a jury, and such amount together with the expenses of the proceeding, must be paid by the person to be benefited.'

R.C.M.1947, sections 93-9902, subd. 6 and 93-9904, authorize the taking of private property for rights of way for private roads of necessity leading from highways to residences or farms.

R.C.M.1947, section 93-9923, provides: 'Private roads may be opened in the manner prescribed by this chapter, but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited.'

R.C.M.1947, section 93-9922, provides: 'Except as otherwise provided in this chapter, the provisions of sections 93-2301 to 93-8717 are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter.'

Thus section 93-9922 expressly adopts sections 93-8601 and 93-8618 as applicable to eminent domain proceedings and this court so held in Kendrick v. Powell, 119 Mont. 622, at page 625, 178 P.2d 859, at page 860.

It is provided by R.C.M.1947, section 93-8601 that the measure and made of compensation of attorneys and counsellors-at-law is left to agreement, express or implied, of the parties except in certain specifically enumerated proceedings. Condemnation proceedings are not included in the exception. However section 93-8601 concludes: 'But parties to actions or proceedings are entitled to costs and disbursements as hereinafter provided.'

To what costs and disbursements are parties to actions or proceedings entitled under the provisions of Chapter 86 of the Code of Civil Procedure being sections 93-8601 to 93-8631 inclusive?

R.C.M.1947, section 93-8618, reads: 'What are costs and disbursements. A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements, as follows: The legal fees of witnesses, including mileage, or referees and other officers; the expenses of taking depositions; the legal fees for publication when publication is directed; the legal fees paid for filing and recording papers and certified copies thereof necessarily used in the action or on the trial; the legal fees paid stenographers for per diem or for copies; the reasonable expenses of printing papers for a hearing when required by a rule of court; the reasonable expenses of making transcript for the supreme court; the reasonable expenses for making a map or maps if required, and necessary to be used on trial or hearing; and such other reasonable and necessary expenses as are taxable according to the course and practice of the court, or by express provision of law.' (Emphasis supplied.)

Under the express provisions of the foregoing statute 93-8618, only the first ten items included in defendants' bill of costs are allowable as taxable costs and the court properly disallowed the item of...