People ex rel. Department of Public Works v. International Telephone & Telegraph Corp.

The moving party in this proceeding, the respondent State of California (the State), filed this motion for an order to recall the remittitur on the ground that the State as the prevailing party is; entitled to an award of costs on appeal. The property owner, International Telephone and Telegraph Corporation (ITT), had appealed from the judgment of the trial court in a condemnation action; in this court’s affirmance of that judgment 1 no direction was given as to costs. The clerk of the court included in the remittitur an award of costs; to appellant ITT on the ground that ITT was the owner in an eminent domain action.

Ordinarily, costs on appeal are awarded to a prevailing party “as an incident to the judgment on appeal.” (Rule 26, Cal. Rules of Court.) In condemnation cases the above rule is subject to- certain exceptions. Where the condemning agency is the appellant, the property owner is entitled to costs on appeal even if the condemner is the prevailing party. (San Joaquin etc. Irr. Co. v. Stevinson, 165 Cal. 540 [ 132 P. 1021 ]; City of Stockton v. Vote, 16 Cal.App. 369 [ 244 P. 609 ].)

The basis of this rule lies in article I, section 14 of the California…

I concur, but of necessity do so rather blindly. The 1964 Supreme Court decision (In re Redevelopment Plan for Bunker Hill, 61 Cal.2d 21 [ 37 Cal.Rptr. 74 , 389 P.2d 538 ]) appears to permit costs on appeal to be awarded against an unsuccessfully appealing owner only when the issue of public use is raised. The failure of Bunker Hill to disapprove the earlier Supreme Court cases (Los Angeles etc. Ry. Co. v. Rumpp and *554 Oakland v. Pacific Coast Lumber etc. Co.) can be read to emphasize that Bunker Hill but distinguished these cases upon the basis of the claim urged on appeal by the property owner, leaving intact the rule that asserted insufficiencies of the award permit allowance of costs against the appellant owner. Yet in the two Court of Appeal cases cited in the opinion (People ex rel. Dept. Pub. Wks. v. Vallejos, 251 Cal.App.2d 414 [ 59 Cal.Rptr. 450 ]; People ex rel. Dept. Pub. Wks. v. Arthofer, 245 Cal.App.2d 454 [ 54 Cal.Rptr. 878 ]), the only issue, although one turned upon admissibility of evidence and the other upon ownership of the land, seemed to be the amount of the award. Nonetheless, the Supreme Court, by minute order and without opinion, directed recall of…