Bassett v. Swenson , 51 Idaho 256 ( 1931 )

A petition for rehearing has been filed by the appellants; also a motion by respondent challenging the appellants' cost bill.

Appellants claim that the decision in this case is inconsistent with the holding of this court in Marshall v.Niagara Springs Orchard Co., 22 Idaho 144, 125 P. 208. In the Marshall case the court concluded from the record that a trespass had been committed in procuring data for the application for a permit to appropriate water. The court held that on that account the permit thus initiated was void. In this case the undisputed testimony is that the data for the application was obtained without any entry upon the premises or trespass whatever. It is true that the court in the former case apparently based its findings upon the assumption that it was impossible for the applicant to obtain the data for his survey and plats without committing trespass. The expression is a little out of the ordinary. Of course what was said on that fact issue was with reference to the record in that case. We assume that trespass was committed in the Marshall case, for the decision was based upon that fact. Here, however, the record is positively the reverse. The cases are not parallel; they appear to be at right angles on the issue of trespass in procuring the data for the application for permit. We have no occasion to overrule the decision in the former case or even criticise the decision or the expressions in the opinion.

The respondent complains of the cost bill. The action being in condemnation, costs are allowed to the land owner regardless of who may have been successful on the appeal. (Rawson-Works Lumber Co. v. Richardson (on petition for rehearing), 26 Idaho 45, 141 P. 76; Portneuf-Marsh Valley Irr.Co. v. Portneuf Irr. Co. (on petition for rehearing), 19 Idaho 492,114 P. 21; Washington Water Power Co. v. Waters, 19 Idaho 595, 611, 115 P. 682.) The item for $5.00 is for service and expense to the clerk in certifying and transmitting the transcript and is allowed by C. S., sec. 7166.

An item for 897 folios of transcript at 150¢ per folio, amounting to $135.55, is claimed. C. S., sec. 6560, as amended by Sess. Laws 1925, chap. 111, p. 157, provides in part as follows:

"2. That in all actions other than criminal actions, such reporter shall charge and receive, and retain as provided in subdivision 1, hereof, 15 cents per folio of 100 words for the original and four carbon copies thereof, . . . ."

An inspection of the transcript convinces us that there are not to exceed 558 folios of 100 words each in the transcript and the item for transcript should be $83.70.

The item for briefs is allowable as costs under the rules of this court and is equivalent to statutory allowance. (California Gulch Placer Mining Co. v. Patrick, 37 Idaho 661,218 P. 378; Nielson v. Board of County Commrs., 40 Idaho 481,234 P. 686.)

Costs are retaxed in the amount of $159.30.

The petition for rehearing is denied, with costs as above noted.

Lee, C.J., and Givens and Varian, JJ., concur.