McCready v. Rio Grande Western Ry. Co.

MeOARTY, T., after making the foregoing statement of the case, delivered the opinion of the court. The decisive question presented by this appeal is whether a party who in good faith commences an action under the eminent domain act to condemn land is liable, upon a dismissal of the suit by such party, to the owner of the land for the expenses he was put to in employing counsel, hiring expert witnesses, and his own loss of time and expenditures made in the defense of such suit; that is, such expenditures as a party may be put to in preparing his defense that cannot be taxed as costs in the action. Section 3181, Revised Statutes Utah 1898, so far as material in this case, provides as follows: “An action may be dismissed or a judgment of nonsuit entered in the following eases: (1) By the plaintiff himself at any time before trial upon the payment of costs, if a counterclaim has not been made, or affirmative relief sought by the answer of the defendant. . . . By the court, when upon the trial and before the final submission of the case the plaintiff abandons it.” Section 3190 provides that: “Upon the dismissal or disposition of an action in which the court lias jurisdiction of the subject-matter of the action, it is the duty of the court to render judgment for costs.” In the condemnation suit under consideration no counterclaim was made or affirmative relief asked for by defendant. Therefore the plaintiff in that case, under the foregoing provisions of the statutes, was entitled as of course to have the case dismissed. And section 3605 provides that in condemnation suits. [5] “Costs may "be allowed or not, and, if allowed, may be apportioned between tbe parties on tbe same or adverse sides, in the discretion of tbe court.” Tbe term “costs,” as used in tbe foregoing provisions of tbe statutes, refers to and includes only tbe costs tbat are taxable in an action or proceeding; tbat is, sucb costs and fees as are fixed and regulated by statute. (Davidson v. Munsey, 29 Utah 181, 80 Pac. 748.) Section 3606 of tbe eminent domain act, so far as material here, provides as follows: “Except as otherwise provided in this chapter the provisions in this Code relative to civil actions . . . shall be applicable to and constitute the rules of practice in the proceedings in this chapter.” It is apparent from tbe foregoing provisions of tbe statutes tbat tbe same rule governing tbe allowance and taxation of costs in civil actions generally must control in suits commenced under tbe eminent domain act. There being no allegation in tbe complaint in this case of malice or bad faitb on tbe part of defendant in bringing tbe action, or of delaying for an unreasonable length of time in tbe dismissal of tbe same, tbe underlying principle in tbe case, as stated by counsel for respondent in their brief: “Is not merely whether upon the dismissal of a condemnation suit, but upon the dismissal of any case, the plaintiff, no matter how good his motives may have been either in the institution or the dismissal, is bound to indemnify the defendant for expenses incurred in employing counsel, hiring expert witnesses, and for loss of time in consulting his lawyer and preparing his defense.” As such losses and expenditures cannot, under our' statutes, be taxed as costs in a case in tbe first instance, neither can they be made tbe basis for a recovery in an independent action, especially where, as in this case, there is no allegation in tbe complaint of malice or bad faitb on tbe part of plaintiff in bringing tbe suit, or of an unreasonable delay in procuring its dismissal. Counsel for appellant do not question tbe general proposition tbat in civil cases generally tbe defendant is not entitled, upon a dismissal of a suit brought in good faitb, to recover for expenses made by him in preparing bis defense which are not taxable as costs in tbe case; but they contend tbat in emi [6] nent domain proceedings to condemn land, because the plaintiff is given the right to acquire the title and possession of land without the owner’s consent, a different rule should govern, and, in addition to the expenditures which the landowner is permitted to tax as costs upon a dismissal of the action, he should be permitted to recover for whatever other damages or losses he may have sustained by the institution of the suit. We know of no reason — and certainly none has been suggested or pointed out — why the exception contended for should be made in this class of cases. For aught that appears in the record, the defendant acted in perfect good faith in bringing its suit to condemn. And, so long as it acted in good faith, it cannot be held to be guilty of a legal wrong, as suits of this character are expressly authorized by the laws of this state, and, if the defendant in that case necessarily incurred expenses in that case in preparing his defense that were not taxable as costs in the action, it is a case of damnum absque injuria, for which no recovery can be had. This same question has been before the courts of other states and, except in those jurisdictions where there are special statutes giving the courts discretionary powers in the allowance and taxation of costs in this kind of cases, they have almost uniformly held that only such costs as are taxable in civil actions generally can be collected by the landowners. In Andrus v. Bay Creek Railway Co., 60 N. J. Law 10, 36 Atl. 826, the plaintiff brought suit to recover counsel fees and other expenses incurred by him in defending a suit to condemn his land, which was dismissed before the commissioners had made their report assessing the damages. A demurrer to the declaration was sustained, and the plaintiff appealed, and the Supreme Court, in the course of the opinion, say: “At the argument the court intimated, with some emphasis that the demurrer should be sustained, and subsequent reflection has served only to intensify that conviction. The difficulty with the case as laid is that it exhibits a loss to the plaintiff produced by entirely legal conduct on the part of the defendant. It is a clear ease of damnum absque inywria. There was no legal wrong done to the plaintiff by the institution of this procedure nor hy its discontinuance. In all this there was no abuse of legal process. That such an action will not lie in such a condition of the facts has always been the doctrine of the courts of this state. Over eighty years ago it was so declared, after full examination of the authorities.” [7] In Bergman v. St. Paul Ry. Co., 21 Minn. 533, tbe facts were substantially tbe same as in tbe ease at bar, and tbe Supreme Court, in affirming tbe judgment of tbe lower court sustaining a demurrer to complaint, say: “If the plaintiff is entitled to recover, it must be by virtue of some contract, express or implied, or of some positive rule of law conferring upon him a right of action, or upon the ground that defendant has been guilty of tort. Certainly there is no contract here, nor is there any positive rule of law upon which plaintiff can base a right of action. Neither is there anything in the complaint tending to show any tortious or malicious conduct on the part of the defendant. On the contrary, defendant’s proceedings are expressly admitted to have been duly and regularly taken as provided by law, and there, is nothing whatever to raise a suspicion that defendant’s motive or purpose in instituting, conducting, or dismissing the proceedings was not entirely proper. In other words, the complaint does not set up a cause of action in tort, nor assume to do so.” (Feiten v. City of Wilwaukee, 47 Wis. 494, 2 N. W. 1148; San Jose Rd. Co. v. Wayne, 83 Cal. 566, 23 Pac. 522; U. S. v. Dickson (C. C.), 127 Fed. 774; Mayor of Baltimore v. Musgrave, 48 Md. 272, 30 Am. Rep. 456; 7 Enc. Pl. & Pr., 686; 15 Cyc. 973.) Tbe judgment of tbe trial court is affirmed, witb costs. BARTON, O. J., and STRAUP, J., concur.