Tillamook County v. Johnson

JOHNS, J.

1. It appears from the bill of exceptions that the length of the strip of land sought to be condemned is 2,581 feet; that it would divide the *626 lands of the appellants'; that it would be necessary to fence each side of the strip, and that the cost of constructing the fences and gates would be approximately $400. After such evidence had been offered, Elmer Hall, as a witness for the defendants, testified -over the objection of the plaintiff that when the fences were constructed the yearly cost of maintaining them would be about $50. In the first portion of its charge, the court instructed the jury that—

In arriving at the amount of appellant’s damages, it might

“consider the necessity of the improvements and expenditure of money and labor which the defendants will be required or compelled to make on account of the appropriation or construction of the highway in order to enjoy reasonably such lands to the same extent as before the appropriation, such as the building and maintaining of fences and gates, the reopening or restoring of the passageways upon the land in going to and from one part to another. ’ ’

Thereafter, upon the question of resulting damages, the court told the jury that the defendants would be entitled to recover “the reasonable cost of the construction of a reasonable fence on each side of the right of way, as part of the damages.”

When the court had given its charge and before the jury had retired, the following dialogue occurred between the court and counsel for the appellants:

“Counsel. — The court instructed the jury that they are entitled to consider the cost of the construction of the fence, but there was nothing said about the maintenance of the fence after it was constructed.

“Court. — I do not think the maintenance of the fence would be an element of damages. I think the cost of construction is an element of damages, but not the maintenance.

“Counsel. — We except to the court’s refusal to instruct the jury that the cost of maintenance of the *627 fence, after construction along the right of way, would be an element of damages in the case. And to the instruction of the court that it would not be an element of damages.”

The first portion of the charge was correct. Lewis on Eminent Domain, Volume 2, Section 498, says:

“Where, by taking a part of a tract, additional fencing will be rendered necessary in order to the reasonable use and enjoyment of the remainder, as it probably will be used in the future, and the burden of constructing such additional fence is cast upon the owner of the land; then the burden of constructing and maintaining such fence in so far as it depreciates the value of the land, is a proper element to be considered in estimating the damages. * * It is a question of damage to the land, as land. If, in view of the probable future use of the land, additional fencing will be necessary, of which the jury or commissioners are to judge, and the owner must construct the fence if he has it, then the land is depreciated in proportion to the expense of constructing and maintaining such fencing. Nothing can be allowed for fence, as fence. The allowance should be for the depreciation of the land in consequence of the burden thus cast upon it.”

The effect of the second instruction and the subsequent proceedings between court and counsel was to nullify the first instruction and take from the jury consideration of the cost of maintaining the fences. Under proper pleadings, this would have been reversible' error.

2, 3. It devolved upon the appellants to make proper allegations in their answer as to how and why they would suffer damages, and to prove their claim by competent testimony. Although in a part of their answer above quoted they allege “that, in order that the defendants shall at all times have the use and enjoyment of the said lands contiguous and adjacent *628 to the said strip,” it will be necessary for them to build fences along each side of the strip at an expense of not less than $450; it will be noted that there is no allegation concerning the cost of maintaining such fences. Testimony regarding this cost was received over the plaintiff’s objection, which, under the pleadings, should have been sustained. Hence, although instructions upon that point were erroneous, as a matter of law, they were not prejudicial.

4. The appellants contend that there was no testimony which would sustain a verdict for any less amount than $300 as attorney’s fee. In Wright v. Conservative Inv. Co., 49 Or. 177 ( 89 Pac. 387 ), .this court held that the amount of an attorney’s fee is not within the discretion of the court, but should be determined from the evidence; and that where the only testimony fixed $50 as a reasonable fee, a finding of $30 was not supported. That principle was modified and in legal effect overruled by the opinion in Lockhart v. Ferrey, 59 Or. 179 ( 115 Pac. 431 ), which held that on appeal this court is not bound by opinion evidence as to the amount of attorney’s fee to be allowed on a contract. Here, the only evidence on the subject before this court is the testimony of attorney Mannix, incorporated in the bill of exceptions, based upon which the jury found that $150 was a reasonable fee. After a careful reading of the record, we cannot say as a matter of law that there is no evidence to support that finding.

.The judgment is affirmed.

Aeeirmed. Rehearing Denied.

McBride, C. J., and' Bean and Bennett, JJ., concur.