St. Louis Railway Co. v. Southern Railway Co.

Maceablane, J.

This, is a suit to recover damages on account of the expense of employing counsel in defending an condemnation proceeding prosecuted by plaintiff against defendant. Plaintiff and defendant are each corporations owning and operating street railways in the city of St. Louis. In 1889 a part of plaintiff’s railway, with two tracks, was located along and' upon Broadway in said city. Defendant secured from, the city the right to extend its road along the same street and that portion thereof occupied by plaintiff’s road. Defendant desired, and claimed the right to use the tracks of plaintiff upon which to run its cars. This right plaintiff disputed. To enforce the right claimed, and to have compensation for the use ascertained, defendant commenced a proceeding of condemnation in the circuit court. This suit plaintiff vigorously defended, denying the right of defendant to exercise the power of eminent domain, denying the power of the city to grant'the right to defendant to use its track, and denying the right of one public corporation to interfere with the franchises of another. ' These»defenses were all overruled by the court and commissioners were appointed to assess the damages. The question of the amount of the damages was fought out before the commissioners and their award was deemed by the plaintiff as excessive and it filed exceptions to the report. Before the exceptions wfere passed upon by the *595 court defendant dismissed the proceedings. The numerous defenses were made by counsel employed by {plaintiff.

On the trial in this case each party offered evidence tending to prove the value of the legal services rendered in the condemnation proceedings. This evi. dence consisted chiefly of the opinions of expert witnesses. The opinions as to the value ranged from $500 to $5,000.

The instructions asked by each party required the jury to find the value of the legal services rendered. The jury returned a verdict in favor of plaintiff for $4,000, and from a judgment rendered for that amount defendant appealed.

Defendant insists that the expense incurred in the employment of counsel in such proceedings is not recoverable; that such expenses, if recoverable, should only include that incurred in ascertaining the amount of the damages; and that the damages are excessive.

I. On the question whether, on dismissal of proceedings to appropriate land to public uses, the landowner is entitled to recover of the ex-propriator, counsel fees paid by him in making defense against the appropriation, the decisions in the different jurisdictions are not uniform. This want' of uniformity, on examination, will be found to result rather from the difference of statutory provisions, than from want of harmony in the general principles of law. It must be agreed that the generally accepted rule is, that the right to recover the expenses of the litigation, as well as legal costs, in any case, must be determined from a common law standpoint, unless otherwise provided by statute. Lewis on Eminent Domain, sec. 658; Randolph, Em. Dom. 282-284, and eases cited.

The rule at common law is that the successful party is only entitled to recover his taxable costs in which *596 the fees he pays counsel are not included. “In general,” says Sedgwick, “the law considers the. taxed costs as the only damages which the party sustains by the defense of the suit against him, and these he recovers by the judgment in his favor.” 1 Sedgwick on Damages, sec. 229.

Except in some special cases, counsel fees are not recoverable as costs under our statutes; such fees are not included in general provisions for the payment of costs, nor are they specially included under the chapter regulating proceedings for the appropriation of land for public uses.

Was the question of the recovery of such expenses on dismissal of condemnation proceedings a new one in this State, we might hesitate in sustaining this action. But this court forty years ago held that on the discontinuance of proceedings to condemn land for the use of a railroad, the landowner was entitled to payment by the company of all the costs of the case including counsel fees. Railroad v. Lackland, 25 Mo. 515 . This case has been followed, or approvingly cited, in many subsequent cases. St. Joseph v. Hamilton, 43 Mo. 288 ; State ex rel. v. Hug, 44 Mo. 117 ; St. Louis v. Meintz, 107 Mo. 611 ; Simpson v. Kansas City, 111 Mo. 240 .

While authority to charge such expenses against the public corporations is not expressly conferred by their charters, or the-general statutes, the rule, so long followed in the Lackland case, is eminently equitable and just, and the law has therefore been given an equitable construction. If a corporation has the right to discontinue its proceedings whenever the damages assessed are regarded as unreasonable, or the results are otherwise unfavorable, the plainest principles of right require that such expense should be paid. In case absolute power to discontinue is not given it is generally held that the court may, in its discretion, impose *597 the payment of the expenses incurred by the landowner as a condition upon which a discontinuance will be permitted. In re Waverly Water Co., 85 N. Y. 481 ; In re Water Comr’s, 31 N. J. L. 72.

The rule in the LacJdand ease has remained undisturbed for forty years. During that time numerous charters to railroad companies and municipal corporations, have been granted by the legislature, in which we must assume that the rule has been recognized as the law of the State, and that it applied to all charters granted. Had this not been recognized as the law the legislature might well have imposed such terms upon the right to discontinue proceedings.

The charter of the' North Missouri Railroad Company construed in the Lacldmd case, authorized the company to dismiss any proceedings, at any time, before final judgment, and provided that in all eases of condemnation the court should adjudge the costs according to equity. Acts 1855, 232. The court says: “It is obvious that if the company is permitted to discontinue, all the costs of the landowner should be paid by the company. This will include all the costs of the case and counsel fees.”

.The statute under which the proceedings here in question were prosecuted also authorized the discontinuance of the proceedings and abandonment of the land sought to be appropriated. R. S. 1889, sec. 2736. It provides that the company shall pay all costs up to and including the filing and copying the report of the commissioners, and that the court shall adjudge subsequent costs as, in its discretion,' may be deemed just. R. S. 1889, sec. 2739. The difference in the statutory provisions do not appear sufficient to indicate an intention.of the legislature to change the rule declared in that case.

*598 In. view of these considerations, we do not think the rule should be disturbed.

II. It is insisted in the next place that if the right of the landowner to recover for the expenses incurred in defending against the proceedings to condemn, is to be placed upon equitable grounds, independent of any express law, they should not include such as were incurred in unavailing contests over the right of defendant to exercise the power of eminent domain. It is argued that, for costs and expenses needlessly incurred, plaintiff is not, in equity, entitled to recover.

It may be conceded that every citizen holds his. property subject to the paramount right of the State to appropriate it to public uses, when necessary thereto, yet the power, when conferred by the State upon a public corporation, is most extraordinary, and its exercise often operates oppressively as well as vexatiously to the citizen whose property is taken. Such high prerogative is only allowed “where the plain letter of the law permits it, and under a careful observance, of the formalities prescribed for the owner’s protection.” Cooley, Const. Lim. 651.

The landowner has the -right, in defending, to dispute the power, and to question the regularity of the proceedings, as well as to insist upon just compensation. If he fail to defeat the proceedings, and the land is in the end appropriated, he is not entitled to recover the expense incurred in making his defense. St. Louis v. Meintz, 107 Mo. 611 .

But, after a long legal contest, defendant discontinued its proceedings altogether, thereby virtually admitting either that the acquisition of the right claimed was not a public necessity, or that it did not have the power to appropriate, or did not properly exercise the power if possessed.

Defendant is certainly not in a situation to claim *599 equitable treatment. Plaintiff had the right to make ■all the defenses the record shows it did make, and none of the expenses incurred therein can be said to have been needless.

III. It is said in the third place that the verdict is excessive. The evidence is abundantly sufficient to sustain the finding as to the value- of the legal services rendered. The question was for the jury under the supervision of the circuit court.

The court approved the verdict, and this court should not interfere.

The judgment is affirmed.

All the judges of this division concur.