METROPOLITAN WATER DIST OF SOUTHERN v. ADAMS ET AL (1943)

This is an appeal from an order taxing costs in a condemnation proceeding in which the plaintiff, in two consolidated actions, sought to condemn private property of the defendants for public use in the construction of Cajalco Reservoir.

After judgment the defendants filed cost bills in which they sought compensation for the services of expert witnesses at the rate of $100 per day for time spent in preparing for the trial, and while attending the trial, besides money for expenses during both periods. The trial court struck these items from the cost bills and the defendants Lawrence and Gertrude E. Holmes have appealed. We will hereafter refer to Mr. and Mrs. Holmes as the defendants.

The answers of defendants set out the mineralization of certain portions of the land sought to be condemned, and alleged that its highest and best use was in connection with tin ore which existed in subsurface veins. After seventeen trial days had been spent on the question of the value to be placed on these mineral deposits, and each of four expert witnesses had testified, a compromise was reached which resulted in the elimination of this question from the case and a partial abandonment of the condemnation proceedings. This was in effect a total abandonment of the proceedings in so far as condemnation was sought of the minerals lying three hundred feet or more below the surface of the ground. This eliminated from the cases the question of the valuation of the property because of the existence of these mineral deposits as it is conceded that the valuable deposits lay below that depth. Also certain surface rights were reserved to enable the mining operations to reach subsurface deposits. The reservation of these surface rights does not affect the question here presented.

It is admitted that the four experts employed by defendants were qualified to advise them and their counsel and to testify on the questions involved. Two of them had actual experience during the latter part of the last century in mining tin on property adjoining that of defendants. The others had gained knowledge of tin ores and their removal either by observation or actual mining operations in Bolivia or in Cornwall, England. The deposits in those countries were similar to those which it is claimed exist under the surface of defendants' property.

The four witnesses whose fees and expenses are involved here are George W. Bryant, Ralph H. Shaw, C. O. Sanford and Rush T. Sill. While two cost bills were filed they present the same questions. A consolidation of them will illustrate the nature of the fees claimed:

One cost bill sought only “Compensation for time other than as a witness in court” for three of these witnesses in the total sum of $1030. In addition it claimed as costs the following item: “ ‘Report on Tin Ore in California’ (Purchased from California State Mineralogist) $2.38.”

The trial court refused to tax as costs any of the foregoing items and this appeal from that order followed.

Defendants claim to be entitled to the costs alleged in their cost bills, exclusive of the “Report on Tin Ore in California”, under the provisions of section 1255a of the Code of Civil Procedure. Plaintiff seeks to support the order under the general rules governing taxing costs and the provisions of section 1871 of the Code of Civil Procedure.

The pertinent provisions of section 1255a of the Code of Civil Procedure are as follows: “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 Code of Civil Procedure contains the following:

“Whenever it shall be made to appear to any court or judge thereof, either before or during the trial of any action or proceeding, civil, criminal, or juvenile court, pending before such court, that expert evidence is, or will be required by the court or any party to such action or proceeding, such court or judge may, on motion of any party, or on motion of such court or judge, appoint one or more experts to investigate and testify at the trial of such action or proceeding relative to the matter or matters as to which such expert evidence is, or will be required, and such court or judge may fix the compensation of such expert or experts for such services, if any, as such expert or experts may have rendered, in addition to his or their services as a witness or witnesses, at such amount or amounts as to the court or judge may seem reasonable. * * *

“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.”

It is admitted that the general provisions of law governing the taxing of costs do not apply here and that this decision must be governed by the quoted provisions of the two sections as interpreted by the decisions of our courts.

The general rules governing the allowance of costs is thus stated in Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 83 P.2d 503, 507, as follows: “The right to recover costs is entirely statutory and ‘the measure of the statute is the measure of the right’. [In re] Estate of Johnson, 198 Cal. 469, 245 P. 1089. * * * Certainly the statute does not contemplate that a defendant must pay all of the successful plaintiff's expenses in connection with the litigation. The code authorizes the allowance of costs only, and the inclusion of ‘necessary disbursements' in the section requiring one who claims costs to file a memorandum of them does not authorize a litigant to collect from his unsuccessful adversary the amount of any expense which is not allowable as an item of ‘costs'. Bond v. United Railroads, 20 Cal.App. 124, 128 P. 786.” See, also, Miller v. Highland Ditch Co., 91 Cal. 103, 27 P. 536; Murphy v. F. D. Cornell Co., 110 Cal.App. 452, 294 P. 490.

Part of the problem presented here was before the court in City of Los Angeles v. Clay, 126 Cal.App. 465, 14 P.2d 926, 927, where the defendant sought to recover the fees of his experts who had appraised his property in a condemnation proceeding. The proceeding was dismissed after the trial. This constituted its abandonment under the provisions of section 1255a of the Code of Civil Procedure. In holding that defendant could recover nothing paid to these witnesses in excess of ordinary witness fees, the court said: “We are cited to no authority which can be said to justify the conclusion that section 1871 [Code of Civil Procedure] is not applicable here, or that a party has the power which is elsewhere vested in the court to determine what expert evidence may be required, and thus to include the cost thereof as a necessary expense in preparing for trial. We have no doubt that this section does apply to condemnation proceedings, and that it was intended by the Legislature to provide means for a fair and complete ascertainment of facts involved, in this as well as any other proceeding wherein its provisions are used. We conclude that the charge made for expert witnesses other than as ordinary witnesses should be disallowed the more readily because as to such expenses section 1871 entirely safeguards a defendant in condemnation proceedings from loss in case of abandonment by the plaintiff. Under its provisions it is only necessary that a party who desires to use experts should satisfy the court of this necessity and secure an order appointing one or more such witnesses and allowing reasonable and proper compensation for their services. It cannot be assumed, contrary to the admissions of all parties to the present appeals, that the witnesses in question were not such as were entitled ‘to the ordinary witness fees only.’ It is conceded by the respondents that their experts were called by them, and, their category having been defined by legislative enactment, it does not permit of another characterization by judicial interpretation.”

Although a dissenting opinion was filed in the Clay case the Supreme Court denied a petition for hearing. This decision has been followed in City of Los Angeles v. Los Angeles–Inyo Farms Co., 134 Cal.App. 268, 25 P.2d 224; City of Long Beach v. Anderson, 139 Cal.App. 130, 33 P.2d 875; and City of Long Beach v. Anderson, 139 Cal.App. 789, 33 P.2d 876. A petition for hearing of the last cited case was denied by the Supreme Court.

From the foregoing authorities it would seem to be the settled law in California that a party in a condemnation proceeding can recover, as taxable costs, “ordinary witness fees only” for experts employed by him and who were not appointed by the trial court “to investigate and testify at the trial of such action or proceeding relative to the matter or matters as to which such expert evidence is, or will be required”. Sec. 1871, Code Civ. Proc. It is to be noted that the section covers both the time spent by the witness in investigating the issues previous to the trial and the time spent by him as a witness at the trial. As there was no order of court appointing these experts the statute does not authorize the payment of their charges as experts, but only ordinary witness fees. We are referred to no statute nor decision authorizing taxing as costs the expenses of expert witnesses either before or during the trial. The “disbursements, including expenses and attorney fees”, recovery of which has been provided for in section 1255a, Code Civil Procedure, have been limited to those necessary expenses that have been recognized as “costs” that may be properly taxed under the decisions already cited, where, as here, experts have not been appointed by the court. As recovery of costs is a matter to be regulated or permitted by statute it would seem that there is no authority of law for the allowance, as costs, of the expenses and fees claimed for these witnesses in excess of their ordinary witness fees.

Defendants argue that this case presents unusual problems that should bring it without the foregoing rule. They point out that there is little or no tin mined in the United States and no general knowledge here concerning that industry; that, generally, the Bar in this country neither knows nor has convenient and accessible means of acquiring knowledge of geological structures carrying tin or the values to be placed on them or the methods of mining and reducing the ore; that the cases here involved the condemnation of valuable tin deposits; that it was necessary for counsel to be fully informed on all of the questions involved so they could present the evidence to the court in an orderly and intelligent manner and cross–examine adverse witnesses who might be produced by the plaintiff. It is argued that the instruction and education of counsel along these unfamiliar lines should be regarded as necessary expenses of defendants in preparing for trial and in trying the case.

This argument presents rather startling implications when carried through to its conclusion. Experience has taught us that many times even learned counsel may be employed in cases requiring special preparation in entirely unfamiliar subjects with which he must become acquainted in order to present his client's case intelligently. In those cases he must pursue the study of unfamiliar subjects and often has to consult those learned in them. For the purpose of trying the case he may become a temporary specialist in the subject involved. Such situations are not uncommon in the practice of the profession.

Some attorneys are familiar with the rules of practice governing the condemnation of private property for public use. Others seldom are retained in such cases during a lifetime at the Bar but still have the right to accept a retainer in any one of them. Condemnation actions present questions of law, evidence, and procedure peculiar to themselves. An attorney employed for the first time in one of them must acquaint himself with those rules. This is a necessary part of his preparation for the trial. Can it be said that this education in preparation for trial is one of the “necessary expenses incurred in preparing for trial” that may be recovered as costs in addition to the reasonable attorney fees recovery of which is allowed by the statute? We think not, for the attorney should pay for his own education and this expense to him should be covered by his attorney's fee.

We can find no distinction in reason between the education of an attorney in his first condemnation case in the rules governing the trial of such cases and the education of the learned and experienced counsel for defendants in the somewhat unusual field of the geology of deposits of tin ore, their value and the methods of mining and reducing them. Both come within the field of specialized instruction and education of the attorney in the preparation for and trial of a case and should be paid for by the attorney whose expense of this special education should be covered by his fee. The danger of adopting any other rule is illustrated by one of the cost bills filed here in which claim was made, but now abandoned, for the cost of “Report on Tin Ore in California”, a publication evidently purchased in the course of this education of counsel.

It would seem that ordinary witness fees of the four experts might have been allowed as costs to defendants while those witnesses were actually in necessary attendance at the trial. Corona Foothill Lemon Co. v. Lillibridge, 12 Cal.App.2d 549, 55 P.2d 1210. However, this question is not raised on appeal and as the amount involved is small we are not disposed to disturb the order on that account.

The order is affirmed.

MARKS, Justice.

GRIFFIN, Acting P. J., concurs.