Clay

Three cases were consolidated upon appeal by the City of Los Angeles from orders denying motions to tax costs in eminent domain proceedings, following the dismissal thereof after trial.

The principal question presented necessitates an interpretation of section 1255a of the Code of Civil Procedure relating to witness’ fees. It is therein provided: “Upon such abandonment, express or implied, on motion of the defendant, a judgment shall be entered dismissing the proceeding and awarding the defendant his costs and disbursements, which shall include all necessary expenses in currcd in preparing for trial and reasonable attorney fees.” The appellant excepted to the allowance of fees to expert witnesses who had appraised the designated properties and who were called by the respondents to testify as to values. It is contended that these are not proper taxable items for the reason that said witnesses were not appointed by the court, but were employed by the defendants.

It has been determined that the fees of expert witnesses in condemnation proceedings are not authorized under sections 1022, 1025 and 1255 of the Code of Civil Procedure which relate to “costs”. (City of Los Angeles v.…

I do not think the citation of cases on the general question of costs is helpful in this case. Section 1255a of the Code of Civil Procedure is unmistakably a statute applying alone to cases in which the extraordinary power of eminent domain is sought to be exercised. It recognizes the limited meaning of “costs and disbursements” and specifically adds to the ordinary cost bill disbursements “which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees.” The legislature evidently did not consider that the usual allowance of “costs and disbursements” to the winning party properly covered the situation described in 1255a, supra, so it proceeded to provide specifically therefor. There is sound reason for this legislation. Too often ambitious municipalities have pushed condemnation proceedings to judgment only to abandon them before paying out the money when the values exceeded the engineering estimates. That the ordinary cost bill fell far short of making the property owner whole is obvious.

I think the evident purpose of section 1255a of the Code of Civil Procedure is disregarded in the main opinion, for it holds that section 1871 of the…