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State ex rel. State Highway Dept. v. Lots Nos. 133, of Concord Heights, in City of Wilmington, New Castle County

Supreme Court of Delaware

January 9, 1968

The STATE of Delaware upon the relation of the STATE HIGHWAY DEPARTMENT, Plaintiff Below, Appellant,
v.
LOTS NOS. 133, 134 AND 135, BLOCK 1, OF CONCORD HEIGHTS, Situate IN THE CITY OF WILMINGTON, NEW CASTLE COUNTY and State of Delaware, Richard L. Bair and Louise J. Bair, his wife, Wilmington Savings Fund Society, a corporation of the State of Delaware, and Unknown Owners, Defendants Below, Appellees.

Page 838

Upon appeal from Superior Court. Affirmed.

Aubrey B. Lank, of Theisen & Lank, Wilmington, for plaintiff below, appellant.

James F. Kelleher, Wilmington, for defendants below, appellees.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

PER CURIAM:

The State Highway Department urges a reversal of our holding in STATE HIGHWAY DEPARTMENT V. SAPP, DEL., 224 A.2D 598 (1966)[*] to the effect that 10 Del.C. § 8906 is applicable in a condemnation case and that, therefore, it is within the discretion of the Trial Court to assess as costs expert witness fees in a condemnation case.

We have considered the various arguments made by the Department including (1) the legislative histories of 10 Del.C. § 8906 and 10 Del.C. § 6111; (2) the rule prevailing in other jurisdictions, as exemplified by In re Canda Realty Company,9 A.2d 305, 17 N.J.Misc. 346 (1939); State v. Pellini,75 N.J.Super. 161, 182 A.2d 566 (1962); Hartman Tobacco Company v. Argraves, 21 Conn.Sup. 343,154 A.2d 617 (1959); 1 Nichols on Eminent Domain (3d Ed.) § 4.109; (3) the contention that in a condemnation case there is no 'prevailing party' who should recover costs; and (4) the contention that, because § 6111 was a later enactment than § 8906, assuming irreconcilable conflict between the two Statutes, § 6111 must prevail over § 8906.

As to the first contention, we see nothing in the legislative histories of the Statutes to persuade us that the holding in Sapp is wrong. Under § 6111, the Department is required to pay all 'costs' of the condemnation proceeding. Such 'costs' unquestionably include ordinary witness fees; we are satisfied that, by virtue of § 8906, such 'costs' may also include expert witness fees.

As to the second argument, differences in statutory provisions make cases from other jurisdictions inapposite.

As to the third contention, the imposition of all 'costs' upon the Department by the express provision of § 6111 results in giving the property owner a preferred position in this respect in all condemnation cases.

And as to the fourth point, we expressly ruled on this point in Sapp; we are not convinced we erred therein.

Accordingly, we adhere to the ruling in the Sapp case.

The Department urges a very restricted application of the Sapp rule, asking us to limit expert witness fees thereunder to time actually spent on the witness stand. This, in our opinion, is unreasonably restrictive. As we stated in Sapp, expert witness fees 'should be limited to time necessarily spent in attendance upon the Court for the ...


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