Metropolitan Water District v. Adams

EDMONDS, J.

During the trial of a consolidated condemnation action, a compromise was reached providing for an abandonment of the litigation insofar as compensation was sought by Lawrence and Gertrude E. Holmes, two of the property owners, for any minerals lying 300 or more feet below the surface of the ground. By this agreement, there was eliminated from further consideration the value of mineral deposits upon the Holmes property.

After judgment was rendered, Holmes and his wife filed cost bills claiming a total amount of about $13,000 for the fees and expenses of four mining experts. Concededly, the persons named in these cost bills are qualified to advise upon the extent and value of the tin ores which, the Holmes alleged, underlie their land. The cost bills show a total of about $4,000 charged for compensation and expenses of the experts as witnesses in court. Approximately $9,000 is included for the same persons as compensation and expenses other than as witnesses in court. Upon motion, the trial court refused to tax any of these items and the property owners have appealed from the order to that effect.

The appellants assert that because there is little or no tin mined in the United States and it is difficult to obtain information concerning the tin industry, they had to expend large sums for a study of geological conditions and data concerning the comparability of their deposits to those in Bolivia and Cornwall, from which the world’s tin supply has been obtained for centuries. All of the experts employed by them appeared as witnesses, but the appellants claim the right to recover the total amount of their cost bills as “necessary expenses incurred in preparing for trial” of a condemnation action. The respondent takes the position that the fees and expenses of an expert witness employed by a property owner to testify in court or for work done outside of court, are not

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taxable as costs. Further, says the respondent, the trial court determined that the persons for whom compensation and expenses are claimed were employed as witnesses and not as investigators or assistants to counsel, and its order is conclusive upon appeal.

Section 1255a of the Code of Civil Procedure provides that condemnation proceedings may be abandoned and “upon such abandonment, express or implied, on motion of any party, a judgment shall be entered dismissing the proceeding and awarding the defendants their costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees. ...” Section 1871 of the same code, a general statute, empowers the trial court in any proceeding, civil or criminal, to appoint and fix the compensation of expert witnesses whenever it appears that their evidence will be required by the court or any party to the action, and further specifies: “Nothing contained in this section shall be deemed or construed so as to prevent any party to any action or proceeding from producing other expert evidence as to such matter or matters, but where other expert witnesses are called by a party to an action or proceeding they shall be entitled to the ordinary witness fees only and such witness fees shall be taxed and allowed in like manner as other witness fees. ’ ’