Kendrick v. Powell

MR. JUSTICE ANGSTMAN delivered' the opinion of the Court. This action was brought to open a private road. The jury found in favor of defendants and judgment for costs and disbursements was entered in their favor. Defendants thereupon filed a memorandum of costs and disbursements. Among the items of expenses listed in the cost bill was an item of attorney’s fee set out as follows: “Attorney’s fee of defendant’s attorney, George W. Farr, for his services in making appearances for the defendants in court, making and filing in said court their answer to the plaintiff’s complaint, making an inspection of the lands and premises of the defendants, including the strip of land sought to be taken and acquired by plaintiff for road purposes, and other routes and strips of land that might be acquired, and in general preparing for the defense of the proceeding for the trial, and in the trial thereof, for and on behalf of the defendants * * * $500.00.” On plaintiff’s motion to retax the court disallowed this item. This appeal followed and presents the sole question of defendants’ right to include the item of attorney’s fee in their cost bill. *624 Section 15 of Article III of onr Constitution, which governs a proceeding to obtain a private road, in part provides: ‘ ‘ Private roads may be opened in the manner to be prescribed by law, .but in every ease 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.” . Section 9955, Revised Codes, 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.7 7 Section 1765, Revised Codes, is practically the same as section 9955. Defendants contend that the phrase “expenses of the proceeding” as used in section 15, Article III, of the Constitution and sections 1765 and 9955, Revised Codes, includes attorneys7 fees incurred by the landowner in resisting the proceedings. We do not pass upon the merits of that contention for the reason that even if we upheld defendants’ contention it would not aid them in this case. The Constitution and statutes relied upon by defendants award “expenses of the proceeding” to defendant only in the event that plaintiff is successful in obtaining the private road. In this ease plaintiff was not successful. The Constitution and statutes involved are silent on the question as to the costs or expenses that must be paid by plaintiff if he be unsuccessful. This court is committed to the view that attorney’s fees are not allowable as costs under section 9802, Revised Codes, in ordinary litigation. In re Mickich’s Estate, 114 Mont. 258, 136 Pac. (2d) 223; McBride v. School District, 88 Mont. 110, 290 Pac. 252; In re Kesl’s Estate Mont., 161 Pac. (2d) 641. *625 Neither the Constitution nor the statutes contemplate any different rule in condemnation proceedings as respects a case in which palintiff is unsuccessful, but on the contrary, section 9954 expressly adopts sections 9802 and 97-86 as applicable to eminent domain proceedings. Hence, whatever may be the rule as to a successful plaintiff in condemnation proceedings to procure a private road, there is no statutory or constitutional authority for awarding to a successful defendant attorneys’ fees against a plaintiff who was unsuccessful, as here. The order appealed from is affirmed. Associate Justices Choate, Cheadle, and Metcalf, concur.