Johnson v. Sutliff ( 1885 )

Maxwell, J.

In October, 1882, the plaintiffs filed their petition in the district court of Seward county, against the defendant, praying for a writ of ad quod damnum. In November of that year an order was made in said court directing the sheriff to impanel a jury of inquest as provided in the mill-da'm act of 1873. The jury were impaneled and made their report in writing. At the May, 1883, term of the court the defendant filed objections to the writ, which were overruled, and he thereupon filed an answer denying the plaintiff’s right to the writ and claiming damages in the sum of $1,000 by reason of the overflow of his land by the backwater caused by the plaintiff’s dam. The question was tried to a jury and a verdict returned in favor of defendant for the sum of $30. The court thereupon rendered judgment on the verdict against the plaintiffs and for all costs of the proceedings. This is the error complained of.

It appears from the record that in May, 1883, the plaintiffs made a written offer to allow or confess judgment for $60 and costs to that date in favor of the defendants, and also in December, 1883, made an offer to confess judgment for $100 and costs to that date. As these offers were not accepted the plaintiffs claim that the defendant is not entitled to costs after the dates named. The plaintiffs claim that sections 565 and 570 of the code apply to this case. Section 565 provides that “the defendant in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff or his attorney an offer in writing to allow judgment to be taken against him for the sum specified thereon,” etc. Sec. 570 provides that-“after an action for the recovery of money is brought, the defendant may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action,” etc. The court below seems to have held that these sections did not apply to proceedings in ad quod damnum. In this we think it was correct. In such cases the property of the citizen is taken without his consent and appropriated to public Use. This can only be- done where full compensation is made for the damages sustained. These damages, if the parties are unable to agree upon the amount, must be ascertained in the manner provided by law. For the legitimate expenses incurred in ascertaining the amount of compensation to be paid to the land-owner the plaintiff in the proceedings is liable, otherwise the land-owner might be mulct in costs for defending his rights and his land be appropriated or damaged by others without just compensation; this the law will not permit.. Proceedings in ad quod damnum are regulated entirely by statute, and the •special provisions in the act for the taxation of, costs control. Section 20 of the act provides that “ should no resistance be made to proceedings brought under this act to obtain leave to build or continue a mill-dam, the costs shall be adjudged against the plaintiff; but if such costs be resisted in any stage thereof, the court shall equitably adjust the costs which are caused by sueh resistance, having regard to the event.” Comp. Stat., Ch. 57. That is, the costs caused by resistance are to be taxed as justice may require; but for the other costs the plaintiff is liable. As none of the costs in this action seem to have been •caused by undue resistance to the proceedings the plaintiff is liable for their payment.

The judgment of the district court is therefore affirmed.

Judgment affirmed.

The other judges concur.