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sonable attorneys' fees,

ation of maps of the property, and excurred by such defendant

amination of title of clients thereto, defense of said petition as upon the cannot be included, as they bear no hearing of such application shall be relation to the motion to dismiss. Ibid. right and just, and also for the pay- Neither the state, nor a commissior. ment of the taxable costs," it has been created by the state for the purpose held that a corporation which, after of acquiring property on which to instituting proceedings to condemn erect public buildings, will be allowed property, fails to pay the amount of to abandon the proceedings without the compensation assessed by the being required to comply with such jury within the time fixed, will be con- statute, notwithstanding that the evisidered as having abandoned the dence does not show that the defendproceedings, and thereupon becomes ants have actually paid their attorliable for the costs and expenses neys any amount in satisfaction of incurred by the property owner in the their fees, where it is shown without conduct of the proceedings, including contradiction that services have been attorneys' fees necessarily incurred rendered by the attorneys, and that and fees paid to expert witnesses; but their fees are payable. Deneen v. as the statutory provision is for the Unverzagt (1907) 225 Ill. 378, 80 N. E. payment by the petitioner of all costs 321, 8 Ann. Cas. 396. and expenses paid or incurred in de- And in the absence of any agreefense of the petition, it is not broad ment between the defendant and his enough to include the costs and ex- attorney as to the fees to be paid, the penses of a removal to the appellate court will allow the reasonable value court to set aside the judgment of the of the attorney's services, taking into trial court. Forest Preserve Dist. v. consideration the nature of the controKean (1922) 303 Ill. 293, 135 N. E. 415. versy and the labor required of him.

Under such act several property Chicago & S. Traction Co. v. Flaherty owners who have joined in hiring an (1906) 222 III. 69, 78 N. E. 29. attorney to represent them in a con- The act referred to in the Eggman demnation proceeding against lots Case (1921) 222 Ill. App. 457, supra, owned by them, and have jointly paid, was held in Chicago Sanitary Dist. v. or have become jointly liable to pay, Bernstein (1898) 175 Ill. 215, 51 N. E. such attorney, are entitled to a joint 720, to apply to a dismissal of the petiallowance upon the voluntary dis- tion before a verdict, as well as to missal of the proceeding, if the sum a dismissal after verdict, for, the lanis just. Chicago & S. Traction Co. v. guage of the statute not being limited, Gaines (1906) 129 Ill. App. 160. And the reason and purpose apply as much any owner who has separately hired to a dismissal at one time as at anand paid, or become liable to pay, an

other. attorney, is entitled to a separate al- But the statute only applies where lowance. Ibid.

the proceedings have been voluntarily A street railway corporation which, dismissed by the petitioner, and is not lacking authority to do so, filed a peti- applicable where the petition is distion to condemn certain lands, and, missed by the court on motion of the pending a motion on behalf of the defendant over the objection of the property owners to dismiss the peti- petitioner. Mound City V. Mason tion, voluntarily abandoned the pro- (1916) 199 Ill. App. 120, reversing a ceeding, and, after having reorgan- judgment of the trial court in favor ized as a general railroad corporation, of defendant for attorneys' fees and instituted a second proceeding to con- other expenses incurred by him in demn the same property, is, under such condemnation proceedings, which were statute, liable only for attorneys' fees dismissed over objection of the petifor preparing and filing the appear- tioner. The court stated that this ances of the property owners and the statute was in derogation of the comargument on the motions to dismiss. mon law, and there was no right to Ibid. Services of attorneys in prepar- have such fees taxed unless such ac

tion was clearly warranted by the stat- by the property owner under such statute.

ute is confined to loss of time and A local statute which entitles the amounts paid to counsel and real esdefendant in a condemnation proceed- tate men on account of the taking, and ing to recover his court costs, reason- does not include loss of rentals on a able expenses, and such damages as proposed building, which the prophe may sustain by reason of such ac- erty owner was deterred from erecttion, where the plaintiff has failed to ing by reason of the proceedings, or pay the amount assessed as compensa- for loss of opportunity to make sales tion for the property within a speci- of the land, or for money paid to arfied time, does not create a liability chitects in changing plans, or taxes against the United States where a pro- paid on the whole lot during the period ceeding to appropriate land for a pub- covered by the taking. Munroe v. Wolic use has been abandoned by it; if bourn (1915) 220 Mass. 116, 107 N. E. the property owners were required to 413. The significance of the word incur expenses, or were incidentally “loss," as used in the statute, is to be injured, it was a case of damnum ascertained by determining the sense absque injuria, coming within the uni- in which the legislature used the word versally recognized principle which in this particular connection. There exempts from liability for loss or dam- was no contention that the city acted age incidentally resulting from the otherwise than in good faith and in proper exercise of a legal right. the exercise of its legal rights. Kanakanui v. United States (1917) 157 And in Drury v. Boston (1869) 101 C. C. A. 273, 244 Fed. 923.

Mass. 439, the city council passed an Under a statute providing that an order taking the plaintiff's property owner who has been put to “trouble for street purposes, without awardand expense" should be allowed in- ing damages therefor; the plaintiff demnity therefor, although no entry filed a petition to have his damages is made upon his land, it was held in assessed by a jury, but before the case Whitney v. Lynn (1877) 122 Mass. was submitted to the jury, the order 338, that the property owner was prop

became void, and it was held that, erly allowed compensation for his upon such petition, the plaintiff could trouble and expense in visiting the not claim indemnity under such statrespondent city, employing counsel, utory provisions, for it plainly conand conferring with the mayor in rela- rs land damages, and the indemtion to the proceedings for laying out

nity for inconvenience and expense octhe street, after proceedings by the casioned by proceedings under which city to take land for street purposes, no entry is made, as different things, which had not been entered upon or

depending upon different considerapossession taken, were abandoned, but tions, and not to be considered as althat he was not entitled to damages

ternative claims in the same process. for the "disquietude, vexation, and

In Jacksonville Terminal Co. v. annoyance" to which he had been Blanshard (1919) 77 Fla. 855, 82 So. subjected by reason of the proceed- 300, where by statute it was provided ings, or for the uncertainty in which that all costs of the condemnation he had been kept upon the question proceedings should be paid by the petiwhether the way would be laid out; tioner, which should include the reafor “the word 'trouble' in the statute sonable attorneys' fees for the defendrefers to trouble from which some ant to be assessed by the jury, it was material or pecuniary injury results, held that, when the condemnation proinvolving labor and the expenditure ceedings have been dismissed by the of time, or occasional inconvenience petitioner before the jury has deto the owner in the use and occupa- termined the compensation to be made tion of the land."

for the land, the party entitled to the Where the land which was to be attorneys' fees must recover them by condemned has not been entered upon an independent suit, and that the to complete the taking, the recovery court, upon motion to dismiss the pro


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ceedings, has no power on motion of confine the right to recover damages the defendants to tax their costs, in- to instances of actual damage to the cluding attorneys' fees.

freehold, or loss of possession where The petitioner in a condemnation the loss or injury is satisfactorily proceeding cannot escape liability proven, as distinguished from loss or under a statute imposing upon him injury which is speculative or continreasonable attorneys' fees incurred by gent on future events (see McLaugh. the defendant in a condemnation pro- lin v. Municipality No. 2 (1850) 5 La. ceeding, by dismissing the proceeding Ann. 504; Manila v. Ruymann (1918) before final judgment, and the de- 37 Philippine, 421, and Van Valkfendant may, in case of dismissal, enburgh v. Milwaukee (1878) 43 Wis. bring a separate action to recover rea- 574, supra) while in other cases the sonable attorneys' fees which he actu- question of liability for damages was ally incurred in the condemnation pro- not actually before the court (see, for ceeding before it was dismissed. example, Hullin New Orleans Jacksonville Terminal Co. v. Blan- (1845) 11 Rob. (La.) 97, 43 Am. Dec. shard (1923) Fla. -, 96 So. 286. 202, Graff v. Baltimore (1857) 10 Md. See also Ford v. Park Comrs. (1910) -544, and Re Franklin Street (1900) 14 148 Iowa, 1, 126 N. W. 1030, Ann. Cas. Pa. Super. Ct. 403, supra). 1912B, 940, and Minneapolis & N. W. The power to take private property R. Co. v. Woodworth (1884) 32 Minn. for public use is an arbitrary power, 452, 21 N. W. 476.

and the exercise thereof is guarded by

the Constitution, which declares that III. Liability for damage or loss

vested rights shall not be devested casioned by proceedings.

unless for purposes of public utility a. Of municipal corporations, and for adequate compensation. Suits

of this nature against private rights 1. In general.

should only be commenced in cases of For cases dealing with the right to indispensable necessity,' where the recover for loss or damage occasioned corporation is ready to afford an imby institution of condemnation pro- mediate indemnity, and should be ceeding subsequently abandoned. prosecuted to a speedy termination; where the liability is affected by stat- the fact of delay or abandonment of ute, see infra, III. c.

the suit is prima facie evidence that The decisions are divided on the the property was unnecessary, and, question as to whether a recovery may until fully justified, must subject the be had from a municipality, upon its corporation to indemnify those who abandoning an eminent domain pro- are injured by such proceedings. ceeding which it had instituted and McLaughlin v. Municipality No. 2 prosecuted in good faith, for damages (La.) supra. or loss to the property owner result- And it has been said that the reason ing from the institution of the pro- for the rule requiring the corporation ceedings. In a number of cases a re- to answer in damages upon abandoncovery has been allowed.

Isley v. ing such proceedings is that the power Attica (1915) 59 Ind. App. 694, 109 N. conferred by the state to appropriate E. 918; Hullin v. New Orleans (1845) private property for public use is an 11 Rob. (La.) 97, 43 Am. Dec. 202; extraordinary power, and a high preMcLaughlin v. Municipality No. 2 rogative, which should be allowed (1850) 5 La. Ann. 504; Graff v. Balti- only where the letter of the law permore (1857) 10 Md. 544; Re Frank- mits it, and under a careful observalin Street (1900) 14 Pa. Super. Ct. 403; tion of the formality prescribed for Manila v. Ruymann (1918) 37 Philip- the owner's protection. Owen v. pine, 421; Van Valkenburgh v. Mil- Springfield (1900) 83 Mo. App. 557, waukee (1878) 43 Wis. 574; Robil

supra, II. a. lard v. Montreal (1913) Quebec, A majority of the courts, however, -, 13 D. L. R. 680.

deny the right to recover such damBut some, at least, of these cases, ages from the municipality, their deci

sions being put, in general, upon the ground that the municipality, in instituting such proceedings, is in the exercise of a legal right, and damage resulting to the property owner from the exercise of such right is damnum absque injuria; at least, if the city has prosecuted the proceedings diligently and in good faith.

Connecticut. Carson v. Hartford (1880) 48 Conn. 68.

Louisiana, Mallard v. Lafayette (1850) 5 La. Ann. 112.

Maryland. Shanfelter V. Baltimore (1895) 80 Md. 483, 27 L.R.A. 648, 31 Atl. 439; Baltimore v. Musgrave (1877) 48 Md. 272, 30 Am. Rep. 458.

Minnesota.—McRostie v. Owatanna (1922) 152 Minn. 63, 188 N. W. 52, infra, III. a, 2.

Missouri. Whyte v. Kansas City (1886) 22 Mo. App. 409; Simpson v. Kansas City (1892) 111 Mo. 237, 20 S. W. 38.

New York. Martin v. Brooklyn (1841) 1 Hill, 545.

Wisconsin. Feiten v. Milwaukee (1879) 47 Wis. 499, 2 N. W. 1148. England.

Wild v.

Woolwich [1910] 1 Ch. 35, 101 L. T, N. S. 58, 54 Sol. Jo. 64, 26 Times L. R. 67, 79 L. J. Ch. N. S. 126, 74 J. P. 33, 8 L. G. R. 203—C. A.

Canada. Grimshaw v. Toronto (1913) 28 Ont. L. Rep. 512, 13 D. L.

.247; Hollester v. Montreal (1899) 29 Can. S. C. 402.

Thus, it has been held that there can be no recovery for loss or expense resulting from the voluntary act of the landowner in making changes on the premises in expectation that the proceedings will be prosecuted to judgment. McRostie v. Owatanna (Minn.), Whyte v. Kansas City (Mo.), and Martin v. Brooklyn (N. Y.)- supra.

Nor can damages be recovered for loss of profit on a prospective sale or lease of premises, which failed to materialize on account of the proceedings, notwithstanding an allegation that the value of the property has depreciated. Carson V. Hartford (Conn.), Mallard v. Lafayette (La.), Martin v. Brooklyn (N. Y.), and Wild v. Woolwich (Eng.) – supra.

And in Ford v. Park Comrs. (Iowa)

infra, III. c, the court stated that, in the absence of statute, a municipality would be under no liability for damages suffered by reason of the abandonment of the condemnation proceedings, where no actionable wrong was committed by the city, such as a trespass, or an unreasonable delay on its part.

2. Specific instances. Where a city passed a resolution proposing to lay a street over land belonging to the plaintiff, and referred the matter to commissioners to assess the damages, which were finally decided by appeal to the court three years later, and on report of the commissioners, and thereafter, an ordinance was passed, discontinuing and abandoning all proceedings in relation to the street, the city is not responsible in damages to the landowner for loss which he sustained by delay in sale of the property, or failure to make a profit by the use thereof, in the absence of an allegation imputing blame for the delay between the first and final acts of the city in respect to such proceedings. Garson v. Hartford (1880) 48 Conn. 68. The court said: “The council considered only-did not take. By considering, no new relation between the city and the land came into being; for at all times the land of the plaintiff and of every other owner is exposed to the right of the public to take it for public use. By considering, the taking became more probable than before; but it remained only a possibility; his exclusive possession was not interrupted; the power to sell was not taken from him; his use was made less profitable only by his apprehension lest a possibility might ripen into a certainty. Presumably, the award of damages included the loss resulting from his breach of contract, as well as the value of the land; doubtless the award would prevent a sale for more than the valuation; but the prevention of a sale for more than a fair price constitutes no invasion of the rights of property for which the law furnishes any redress. Moreover, as with notice to the plaintiff of each act of the council there went notice:

that it was considering merely, and This case was distinguished from Van had not determined, if he has suffered Valkenburgh v. Milwaukee (1878) 43 loss by nonuse, it must be charged to Wis. 574, supra, on the ground that in his mistake in forecasting its action." that case the city had taken possession

Nor can the landowner recover dam- of the plaintiff's property, and had ages from the city for the alleged de- done various injurious acts on its freepreciation of his property, by alleging hold, and thereafter abandoned the that the city, in passing the above condemnation proceedings, while in resolutions, practised deception upon the case at bar the injury was merely him and prevented him from carrying incidental to the lawful acts of the on improvements on the land as he city in proceeding to condemn properwould have otherwise done, for the ty for the public use. vote by the council, the assessment Before the report of the commisby the commissioners, and the appear- sioners is finally acted upon, conance in court the attorney were demnation proceedings instituted by acts within legal permission, and did city may be dismissed as may any ordinot, separately or combined, constitute nary suit, so that a city, which from a declaration to the plaintiff that the motives of economy discontinues a street had been laid out, or a promise condemnation proceeding after havthat it would be, and the deception, if ing passed the resolution giving notice any, was self-imposed by an erroneous of an application to be made to the inference of the future from the past. district court for the appointment of Ibid.

commissioners to value and appraise a And while a property owner may certain square of land in order to aprecover from a municipality for any propriate the same as a public place, wrongful and injurious acts of the cor- is not liable to the landowner in damporation in the course of a proceeding ages for loss occasioned by depreciato condemn his property, which is tion of value in the property, in consesubsequently discontinued, if the quence of the institution of the congiven acts done in the course of the demnation proceedings, which but for proceeding are wrongful, but not in- the proceedings he might have sold jurious, or vice versa, the municipality at great advantage, for in discontinuis not liable to respond in damages ing the proceedings the city exercised therefor; for any other rule will ren- a legal right, and the case is one of der the institution of proceedings damnum absque injuria. Mallard v. looking to condemnation of property Lafayette (1850) 5 La. Ann. 112. The for public improvements exceedingly ground of action was that, from the perilous to the municipality. Feiten commencement of the proceedings to v. Milwaukee (1879) 47 Wis. 494, 2 their discontinuance, the plaintiffs N. W. 1148, holding that no damages were deprived of the right of disposcould be recovered by the property ing of their property, which they owner for loss of rent caused by the might have done to great advantage, institution of condemnation proceed- but which they were unable to do by ings which were afterwards aban- reason of the proceedings, and that, doned, where the only averment charg- in the interval, the property fell in ing a wrongful act was that the com- value, which depression continued up mon council unnecessarily delayed the to the time of the institution of the proceedings, without stating facts present suit. showing that the delay was unneces- A condemnation proceeding instisary. The court further stated that it tuted by a municipality in conformity would hesitate to hold that a mere to its charter and the state laws will delay, although unnecessarily pro- not subject the corporation to liabiltracted, would constitute a ground of ity for damages resulting from such action, for there must of necessity be proceedings, although they are suba large discretion vested in the com- sequently abandoned; and as the mon council as to when it would take city authorities are the judges of decisive action upon any proposition. the necessity of improvements, a

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