Lincoln Northern Railway Co. v. Wiswell

[579]

CHIPMAN, P. J.

The action was to condemn a right of way over the land of defendant. Upon the verdict of the jury fixing the amount of the damages to defendant’s property, the court, on October 9, 1907, adjudged that plaintiff pay defendant, within thirty days from the date of the judgment, the sum fixed by the jury, to wit, $4,030.50, or deposit the same in court for the use of defendant, “and upon said payment or deposit of said money as aforesaid within said time, a final order or decree of condemnation . . . shall be entered in this proceeding.” On November 7, 1907, plaintiff gave notice that it would move the court to dismiss the action, upon the ground that plaintiff had never taken possession of the land sought to be condemned, and “will never enter upon said land and has abandoned the location of the route set forth in said complaint, and the right to condemn the same.” In an affidavit heard with the motion, plaintiff, by its attorney, set forth facts in support of the motion, stating, in addition to the grounds above set forth, that the sum awarded was excessive, that no payment or deposit had been made, and that plaintiff does not intend to do so within thirty days from the date of the judgment or at all, and that plaintiff intends to select a new location for the line of its railroad, and that the same will not pass over the lands of defendant.

In an affidavit by counsel for defendant it is set forth that defendant was and is satisfied with the award of damages, and is ready to accept the same and permit plaintiff to take possession of the land, and that “defendant has not, nor does she intend to move for a new trial or take an appeal from the judgment or decree heretofore made by said court in said action. ” It is further stated that defendant incurred certain expenses in the action, among which was an attorney’s fee of at least $500. It appeared that, at the time of hearing said motion to dismiss, plaintiff paid to defendant her costs taxed in the action, which did not include any attorney’s fee. Upon the hearing of the motion the court made and caused to be entered its order dismissing the action, from which defendant appeals.

We feel relieved from entering upon an examination of the eases, as to the question when, or within what time, the plaintiff in condemnation proceedings may abandon the enter