City of Inglewood v. O. T. Johnson Corp.

California Court of Appeal Oct 8, 1952 No. Civ. 19129Published

Before: Moore

AI Brief

AI-generated · verify before citing

Holding. The court held that while expenses for a survey and map were not recoverable because the information could have been obtained via demurrer, attorney's fees incurred in an appellate proceeding to protect property rights during an eminent domain action are recoverable as costs under Code of Civil Procedure section 1255a.

Issues

Whether expenses for a survey and map are recoverable as costs in an abandoned eminent domain proceeding when the information could have been obtained through a demurrer.
Whether attorney's fees incurred in an appellate proceeding to annul an order for immediate possession are recoverable as costs under Code of Civil Procedure section 1255a upon abandonment of the condemnation action.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“the court below was without error in declining to tax the expense of the map as costs.”

“the purpose of the statute is to recompense the defendant for all expense which he is impelled to incur by reason of the condemnor’s instituting the action and his subsequent failure to carry it through to conclusion”

“If in so doing he must initiate an original proceeding in an appellate court, he should be reimbursed for such expense when the condemnor frivolously, or otherwise, abandons the proceedings.”

MOORE, P. J.

Defendants appeal from an order disallowing certain costs and disbursements incurred by them in connection with their preparations to defend an eminent domain

[589]

proceeding initiated by respondent. The action was abandoned before a time of trial had been fixed.

Shortly after the filing of the complaint which sought to condemn certain lands of defendants for a water well with the right to remove water therefrom, the lower court on the ex parte application of respondent made two orders enabling respondent to enter into immediate possession of the realty. On appellants’ petition for a writ of review, this court annulled such orders. (O.

T. Johnson Corp.

Superior Court,

103 Cal.App.2d 278 [229 P.2d 849].) Abandonment of the proceedings having been declared, a judgment of dismissal was entered. Appellants thereupon filed their memorandum of costs and disbursements totaling $2,750.19. Included in such sum was $2,500 for attorney’s fees and $245.19 for “Services of Engineering Service Corporation, Los Angeles, in making survey and map of property sought to be condemned in order to plead to complaint.”

These two items were forthwith attacked by respondent and upon the hearing of its motion to tax costs, the trial court disallowed the cost of the survey and map and allowed only $750 for attorney’s fees, concluding that appellants were not entitled to reimbursement for the expense of legal services incurred in the proceeding before the District Court of Appeal.

It is appellants’ contention on this appeal that they are entitled to the sums now in dispute by virtue of section 1255a,

Code of Civil Procedure. Such statute provides that upon abandonment of a condemnation proceeding “a judgment shall be entered . . . awarding the defendants their costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees.

City of Inglewood v. O. T. Johnson Corp.

AI Brief

MOORE, P. J.

More from California Court of Appeal

Related research

AI Brief