People ex rel. Department of Public Works v. International Telephone & Telegraph Corp.

Opinion

CALDECOTT, J. The moving party in this proceeding, the respondent State of California (the State), filed this motion for an order to recall the remittitur on the ground that the State as the prevailing party is; entitled to an award of costs on appeal. The property owner, International Telephone and Telegraph Corporation (ITT), had appealed from the judgment of the trial court in a condemnation action; in this court’s affirmance of that judgment1 no direction was given as to costs. The clerk of the court included in the remittitur an award of costs; to appellant ITT on the ground that ITT was the owner in an eminent domain action.

Ordinarily, costs on appeal are awarded to a prevailing party “as an incident to the judgment on appeal.” (Rule 26, Cal. Rules of Court.) In condemnation cases the above rule is subject to- certain exceptions. Where the condemning agency is the appellant, the property owner is entitled to costs on appeal even if the condemner is the prevailing party. (San Joaquin etc. Irr. Co. v. Stevinson, 165 Cal. 540 [132 P. 1021]; City of Stockton v. Vote, 16 Cal.App. 369 [244 P. 609].)

The basis of this rule lies in article I, section 14 of the California Constitution which provides: “Private property shall not be taken . . . until [551]full compensation therefor be first made in money or ascertained . . . by a jury, unless a jury be waived.” As stated in respondent’s points and authorities, “. . . the constitution guarantees the right to have an independent determination of just compensation by the jury. Until the time the jury makes this determination the property owner cannot have been accorded his full constitutional right. It is the fact of the determination or ascertainment of the just compensation by the jury which is the right and not the amount of compensation so ascertained which forms the rationale for this rule.”

Where the property owner appeals, and is the prevailing party, he is, of course, entitled to costs under rule 26, as the prevailing party. But where the property owner appeals and is unsuccessful, his entitlement to costs appears to depend on the issue underlying his claim' on appeal.

In a leading case in point, Oakland v. Pacific Coast Lumber etc. Co., 172 Cal. 332 [156 P. 468], the jury’s award of damages was not acceptable to the property owner, who appealed from, the judgment. The appellate court affirmed the award, and because the judgment did not furnish any directions as to costs, the clerk filled in “respondent [condemner] to recover costs of appeal.” The property owner (a corporation) made a motion for an order recalling this remittitur, alleging that it was entitled as a matter of constitutional right to recover its costs on appeal.