Southern Pacific Railroad v. Reis Estate Co.

The action was one instituted by plaintiff in the exercise of the right of eminent domain. The cause proceeded to a trial before a jury and a verdict fixing the amount of compensation and damages. Within thirty days thereafter, and before any further proceedings were had, plaintiff moved the court to dismiss said action upon the grounds “that the damages and values fixed by the jury were excessive, and a dismissal of the case was an abandonment by the plaintiff of its claim for the property.” Defendant objected to such dismissal and moved for a judgment to be entered upon the verdict, but in the event the same should be denied, asked that the dismissal be ordered upon terms and conditions which involved the payment of costs and defendant’s reasonable expenses in preparing for and defending the action, including $29 for surveying and engineering work and maps thereof and $1,000 attorneys’ fees, and that plaintiff be precluded from hereafter commencing another action to condemn the same strip of land here sought to be condemned, or any strip of land in that vicinity across the land of said defendant. These motions were heard and submitted. The court overruled defendant’s objection…

I dissent from the order denying a rehearing of this cause. It is not decided, and I do not think it ought to be held, that where the whole controversy in a condemnation case is over the compensation to which the land owner is entitled, the plaintiff has the unqualified right to dismiss the proceeding upon payment of costs after he has subjected the defendant to heavy expenses in addition to court costs in the legitimate effort to prove the loss and damage that he will sustain in consequence of the condemnation sought. This was the main question in the case, but it is left undecided, because, as the district court holds, conceding the power of the superior court to make the order of dismissal conditional, it has made it unconditional. I do not so construe the order. It was clearly intended to be conditional, and the form in which it was entered does not forbid that construction, or deprive it of that effect, if, as conceded for the purposes of the decision, it was in the power of the court to give it that effect.