Mellichar v. City of Iowa City

Ladd, C. J. — 1 Proceedings for the condemnation of land by a city for public uses are governed by the provisions of chapter 4, title 10, of the Code, relating to the taking of private property for public improvements, save in the matter of the qualification of jurors. Section 884, Code. Section 2007 of that chapter reads: “The corporation shall pay all the costs of assessment made by the commissioners and those occasioned by the appeal, including reasonable attorney fees, to be taxed by the court, unless on trial thereof the same or a less amount of damages is awarded than was allowed by the commissioners.” As to validity of this statute, see Gano v. Railroad Co., 114 Iowa, 713. The costs made by the commissioners are to be paid by the corporation in any event. Only those of appeal to the district court, and attorney’s fees occasioned thereby, depend in any way on the result of the trial. These are to be taxed against the corporation, except in the contingency of a trial at which the amount of damages is not increased. If that contingency does not arise, according to the plain language of the statute, they axe to be paid by the corporation. It is only when the appeal has been shown, in the manner pointed out, to have been improvidently taken, that the corporation is relieved from the payment of the costs occasioned by it. But for this statute, some difficulty might be experienced in determining whether, as a condition of discontinuance of the proceedings, reasonable attorney’s fees might be exacted. See 392 In re Waverly Waterworks Co., 85 N. Y., 481; In re Water Com’rs of Jersey City, 31 N. J. Law, 74 (86 Am. Dec. 199) ; St. Louis R. Co. v. Southern R. Co., 138 Mo. Sup. 471 (39 S. W. Rep. 471) ; St. Louis, F. S. & W. R. Co. v. Martin, 29 Kan. 750. On the abandonment of tbe proceeding it 'is but just and equitable that the party attempting to wrest tbe property from its. owner should pay tbe expenses of litigation already incurred, and sucb is tbe design of tbe section of tbe Code quoted. 2 3 II. But tbe court is limited, in taxing attorney’s fees, to services rendered on appeal from tbe findings of tbe sheriff’s jury. Sucb is tbe clear import of tbe statute. Tbe court found services of counsel rendered therein to be of tbe value of $70, and this amount should have been taxed against tbe city as attorney’s fees. Included in this is a charge for preparing an answer, which appellee insists was not required by statute. Even though not absolutely necessary, it cannot be said, as a matter of law, not to have been expedient to put in writing the precise issues to be raised. Indeed, sucb a course is usually followed by careful attorneys, and may be safely declared tbe better practice. As to tbe fact of being proper in this appeal, tbe finding of tbe district court was final. Compensation for services rendered in other appeals, or in suits for the protection of plaintiff’s property, not having been “occasioned by tbe appeal,” cannot be allowed. — Reversed.