Minneapolis-Saint Paul Sanitary District v. Fitzpatrick

Stone, Justice. Minneapolis-Saint Paul Sanitary District, a public corporation organized under L. 1933, c. 341, 3 Mason Minn. St. 1934 Supp. § § 1607-8 to 1607-30, appeals from a judgment allowing John F. Fitzpatrick $2,000 for attorney’s fees and $265 for witness fees and other disbursements upon what was held to be a dismissal or discontinuance of the condemnation proceeding against a tract of land owned by him. The brief facts are these: The petition for condemnation described the land to be taken as: “All of Government Lot Two (2) in Section Nine (9), Township Twenty-eight (28) North, Range *276 Twenty-two (22) West, subject to easement for railroad purposes over the right of way of the St. Paul Bridge & Terminal Railway Company as now located across said lot.” That tract contains 51 acres. It is the fractional east half of the southeast quarter of section 9, bounded on the Avest by the Mississippi River and on the east by the section line. Roughly speaking, it is half of an oval. Running roughly parallel to the straight east line is the railroad right of way mentioned in the description, east of Avhich lies what counsel tell us is about one-third, in area, of the whole tract. Mr. Fitzpatrick testified that in value the strip east of the railroad Avas about one-fourth of the Avhole. Neither east nor Avest of the railroad are there any buildings, and there has been no use of any of the tract outside of the railroad right of Avay. While the matter was pending before the commissioners appointed to assess the damages, after much but not all of the testimony had been taken, the petitioner procured an order amending the petition so as to omit the portion of the tract east of the westerly line of the railroad right of Avay and dismissing the proceeding as to the area so omitted. For the reduced acreage actually taken under the amended petition, the commissioners, as of June 7, 1935, awarded damages in the sum of $30,718.75. Proceeding by order to show cause, Mr. Fitzpatrick, respondent here, procured an order determining and alloAving his attorneys fees and disbursements, supposedly chargeable to petitioner because of the amendment and consequent dismissal as to the land thereby eliminated, and directing that judgment be entered in his favor and against the petitioner accordingly. From the judgment entered pursuant thereto this appeal is taken. Statutory provisions as to the allowance of costs and disbursements in civil actions are not applicable to condemnation proceedings. Therein such allowances can be made only Avhen expressly authorized by statute. State, by Benson, v. Lesslie, 195 Minn. 108, 263 N. W. 295. Hence, on both sides, the case has been argued from the standpoint of the statutes especially applicable to such proceedings. Among them is 2 Mason Minn. St. 1927, § 6552. It reads in part as folloAvs: *277 “All damages allowed under this chapter, whether by the commissioners or upon appeal, shall bear interest from the time of the filing of the commissioners’ report. If the award be not paid within sixty days after such filing, or, in case of an appeal within the like period, after final judgment thereon, the court, on motion of the owner of the land, shall vacate the award and dismiss the proceeding as against such land. And when the proceeding is so dis missed, or the same is discontinued by the petitioner, the owner may recover from the petitioner reasonable costs and expenses, including fees of counsel.” We italicize the language which in argument has been advanced as controlling decision one way or the other. Under a literal interpretation of the statute there Avould have to be a dismissal of the petition m toto in order to authorize any allowance of costs and disbursements. But to go to that extreme Avould defeat the purpose of the Iuav, Avhich Avas, Ave think, to authorize the alloAvance whenever there is discontinuance of the proceeding as to any separate parcel (although the proceeding continues against others in the same OAvnership) as to Avhich there is a severable controversy as to value and damages. Where there are severable controversies and the subject matter of one is removed from the field of litigation by a dismissal, Ave hold that the statute applies. But Avhere, as here, the tract eliminated by dismissal and amendment of the petition is part of a larger area, the residue of which is taken and the controversy as to its value and the resulting damages is not severable as a separate issue, no alloAvance is authorized. There was but one issue at the beginning, never two. Its subject matter Avas reduced in quantity by the so-called dismissal, which Avas in essence nothing more than an amendment of the petition. Hence our decision here is not controlled by that in State, by Benson, v. Lesslie, 195 Minn. 408, 263 N. W. 295. There the state, having-started condemnation proceedings against certain parcels of land, including those of the respondents, discontinued the proceedings entirely as far as the respondents were concerned, and they Avere properly allowed costs and expenses, including counsel fees. *278 In accord with our view is In re Senator Street, 159 App. Div. 410, 145 N. Y. S. 266. The judgment appealed from is reversed.