White v. State , 294 Ala. 502 ( 1975 )

MADDOX, Justice.

“Attorney’s fees and expenses are not embraced within just compensation for land taken by eminent domain.”

This short, concise and direct quote, taken from Dohany v. Rogers, 281 U.S. 362, 368, 50 S.Ct. 299, 302, 74 L.Ed. 904 (1930), sustains the trial court’s judgment that attorneys’ fees and litigation expenses are not recoverable costs in an eminent domain proceeding.

The landowners, after a judgment was entered in circuit court based upon a jury verdict, filed a motion with the trial judge asking him to direct the circuit clerk to tax $35,000 as costs to pay their attorneys’ fees and expert witnesses’ fees. The court overruled their motion and they appealed. We affirm.

The landowners cite three broad theories to support their argument that they should recover their attorneys’ fees and litigation expenses. First, they say that Title 19, Section 30, Code,¹ authorizes the court to tax these expenses as costs. We disagree. In a long line of cases this Court has held that in the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys’ fees paid by the opposing side. City of Vestavia Hills v. Randle, 292 Ala. 492, 296 So.2d 710 (1974); Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927); Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926); Alabama Digest, Vol. 5-A, Costs, Key No. 172.

Where a statute does authorize the recovery of attorneys’ fees, a landowner may recover them. Mobile Housing Board v. Cross, 285 Ala. 94, 229 So.2d 485 (1969). Title 19, Section 30, Code, does not authorize the recovery of litigation expenses, however.

The landowners’ other theories are based on the proposition that attorneys’ fees and expenses are embraced within “just compensation” in eminent domain proceedings.

Although Alabama appellate courts apparently have not passed on this particular question, the Supreme Court of the United States has. In Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1893), Mr. Justice Brewer spelled out what the words “just compensation” mean. He wrote:

“The language used in the Fifth Amendment in respect to this matter is happily chosen. The entire amendment is a series of negations, denials of right or power in the government, the last, the one in point here, being, ‘Nor shall private property be taken for public use without just compensation.’ The noun ‘compensation,’ standing by itself, carries the idea of an equivalent. Thus we speak of damages by way of compensation, or compensatory damages, as distinguished from punitive or exemplary damages, the former being the equivalent for the injury done, and the latter imposed by way of punishment. So that if the adjective ‘just’ had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective ‘just.’ There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken. And this just compensation, it will be noticed, is for the property, and not to the owner. Every other clause in this Fifth Amendment is personal. ‘No person shall be held to answer for a capital, or otherwise infamous crime,’ etc. Instead of continuing that form of statement, and saying that no person shall be deprived of his property without just compensation the personal element is left out, and the ‘just compensation’ is to be a full equivalent for the property taken.” [Emphasis added.]

The right to recover attorneys’ fees from one’s opponent in litigation as part of the costs thereof did not exist at common law. See annotation, Eminent Domain— Attorneys’ Fees, 26 A.L.R.2d 1295.

Several state appellate courts have construed provisions in condemnation statutes and constitutions for the payment of compensation or “just compensation” as not to include attorneys’ fees wihtin those terms. United States v. 23.94 Acres of Land, 325 F.Supp. 330 (D.C.Va.1970); United States v. 254.35 Acres of Land, 46 F.Supp. 913 (D.C.La.1942); County of Los Angeles v. Ortiz, 6 Cal.3d 141, 98 Cal.Rptr. 454, 490 P.2d 1142 (1971); Pacific Gas & Electric Co. v. Chubb, 24 Cal.App. 265, 141 P. 36 (1914) ; Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906); Seban v. Dade County, 102 So.2d 706 (Fla.1950); Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971); Othumwa v. Taylor, 251 Iowa 618, 102 N.W.2d 376 (Iowa 1960); Welton v. Iowa State Highway Commission, 211 Iowa 625, 233 N.W. 876 (1930); Muskegon v. Slater, 379 Mich. 466, 152 N.W.2d 652 (1967) ; Petition of Reeder, 110 Or. 484, 222 P. 724 (1924) ; North American Realty Co. v. Milwaukee, 189 Wis. 585, 208 N.W. 489 (1926).

Of course, when state statutes permit landowners to recover their litigation expenses, they may do so. Mobile Housing Board v. Cross, supra; State of Washington v. Roth, 78 Wash.2d 711, 479 P.2d 55 (1971).

We note that the Uniform Eminent Domain Code promulgated by the National Conference of Commissioners on Uniform State Laws at its annual meeting held in August, 1974, makes provision for a landowner to recover litigation expenses under certain circumstances. Section 1205 of the Uniform Eminent Domain Code provides:

"[Recoverable Coííj.]

“(a) If the judgment, determines that the plaintiff has the right to take all or part of the defendant’s property, the costs incurred by the defendant shall be claimed, taxed and awarded to the defendant by the same procedure as in other civil actions, except as otherwise provided in this section.

“(b) If the amount of compensation awarded to the defendant by the judgment, exclusive of interest and costs, is equal to or greater than the amount specified in the last offer of settlement made by the defendant under Section 704, the court shall allow to the defendant, in addition to costs allowed under Subsection (a) his litigation expenses, but not more than the greater of [ ] dollars or [25]% of the amount by which the compensation awarded exceeds the amount of the plaintiff’s last offer of settlement made under Section 203 or Section 704.

“[(c) If the amount of compensation awarded to the defendant by the judgment, exclusive of interest and costs, is equal to or less than the amount specified in the last offer of settlement made by the plaintiff under Section 704, the defendant shall not be entitled to his costs incurred after the date of service of the offer.]

“Comment

“Section 1205 provides the basic rules governing the award and allocation of costs. For the definition of ‘costs,’ see Section 103(8).

“The general principle underlying this section, and expressed in Subsection (a), is that when the condemnor is determined to have the right to take the property in question, the recoverable costs of litigation should ordinarily be awarded to the defendant property owner. This rule appears to be generally accepted among American courts, and in some states is regarded as constitutionally required. See Levey, Condemnation in U.S.A. § 47, pp. 463-64 (1969).

“Subsections (b) and (c) are designed to correlate with the provisions of Section 704, under which either party may tender a final offer of settlement prior to trial. If such an offer by the defendant is not accepted, an award of litigation expenses is made to the defendant if he obtains an award more favorable than his final settlement offer. Subsection (b). Non-acceptance of a final offer of settlement by the plaintiff may result in a denial of costs to the defendant under Subsection (c), if the plaintiff obtains a result equal to or more favorable than the offer. Subsection (c), however, is in brackets to indicate that it should be omitted if a withholding of costs in the adopting state would violate state constitutional requirements.”

Alabama has not adopted the Uniform Code or any other statute which would permit the landowners here to recover their litigation expenses.

Affirmed.

HEFLIN, C. J., and MERRILL, BLOODWORTH, ALMON, SHORES and EMBRY, JJ., concur. FAULKNER and JONES, JJ., dissent.

1 . “The costs of the application and proceedings thereunder, including the compensation of commissioners, who shall receive reasonable compensation to be fixed by the judge, must be adjudged and assessed against the applicant and his surety for costs, for which execution may issue. But should the applicant tender to the landowner or other party interested therein, prior to the application for condemnation, a sum of money in excess of that awarded by the commissioners, which tender he has kept good until the time of trial by paying the same, into court to await the result of the proceedings, in which case the costs of the proceedings shall be taxed against the landowner or other party; but the commissioners awarding damages shall have no knowledge of the amount so tendered, and shall so certify in their award.”