concurring.
I concur in the view expressed in the majority opinion that the appellant, the city of Richmond, should recover its costs on appeal, and that the appellees, Windsor Farms, Incorporated, and Grove Improvement Corporation, should recover their costs in the lower court.
A brief restatement of the underlying facts and prior proceedings will, perhaps, clarify my views on the precise issue now before us.
Some years ago, Windsor Farms, Incorporated, and Grove Improvement Corporation developed certain lands just beyond the limits of the city of Richmond. These companies installed in the streets and alleys of its subdivisions certain gas, water and sewer facilities. Upon the annexation of this territory to the city, by the terms of the statute1 these facilities became the property of the city which in turn became bound to reimburse the companies for the fair value thereof.
The parties being unable to agree, in further pursuance of the statute the development companies filed their petitions in the annexation proceedings, praying that the court fix and decree the payment of the amounts due them. In the court below Windsor Farms, Incorporated, was awarded a decree against the city for $279,521, with interest thereon from July 1, 1942, until paid. Grove Improvement Corporation was awarded a decree for $35,217, with interest thereon from June 30, 1942, until paid.
•The lower court likewise decreed that the two development companies recover of the city the costs, saying in its written opinion that they had “substantially prevailed” in *873the litigation. In making this disposition of the costs, the court applied the same statute,2 which the briefs on both sides agree controls the matter.
The city appealed from these decrees. It did not contest the amount of the principal awarded to Windsor Farms, Incorporated, but claimed that it should have borne interest not from July 1, 1942, as fixed by the lower court, but only from the date of the final decree.
Windsor Farms, Incorporated, on the other hand, assigned cross-error in which it contended that interest should have been allowed from December 31, 1941. The difference between these respective claims is, of course, quite substantial.
As to the decree in favor of Grove Improvement Corporation, the city contended that this amount had been fixed upon erroneous principles. It alleged that the “fair value” of the facilities taken over by the city should have been based upon their “reproduction costs,” less depreciation, rather than as the trial court held, upon their “original costs,” less depreciation. The difference here, the city said, amounts to approximately $2,000.
With respect to the same claim the city contended that depreciation should be calculated at the annual rate of 4% instead of 2%. It said that this amounts to a difference of approximately $4,000.
Here, too, the city claimed that interest should have run not from June 30, 1942, as fixed by the lower court, but from the date of the final decree, while that company contended that interest should have been allowed from December 31, 1941. Here, again, the difference in money between the respective contentions is substantial.
In the former opinion (185 Va. 176, 37 S. E. (2d) 873) we sustained all of these contentions of the city, with the result that the claims of the two development companies were substantially reduced.
*874We likewise held that the city was entitled to recover its costs both in the appellate and lower courts.
The development companies sought and obtained a re-' hearing with respect to the allowance of costs in both courts, and that is the issue now before us.
I am still of opinion that the city having successfully maintained before us its claims with respect to the several items, “substantially prevailed” in the appellate court, and is, therefore, entitled to recover its costs on appeal. Code, sec. 3528. I believe all of the members of the court are of the same view.
But it does not follow from this, as the former opinion indicates, that the city is likewise entitled to recover its costs in the lower court. What effect, then, does our modification of the lower court’s decrees have on the costs allowed to the development companies in the court below?
An inspection of our order books shows that when we reverse a judgment or decree of a lower court and enter a final judgment in favor of the plaintiff in error or appellant, the mandate directs that the plaintiff in error or appellant recover both his costs in the appellate court and those in the lower court.
However, when we reverse a judgment or decree of a lower court and remand it for further proceedings, the mandate directs that the plaintiff in error or appellant recover of the opposite party only his costs on appeal. The effect of this is to leave the costs in the lower court to abide the entry of a final judgment or decree.
This is in accord with the general practice in other jurisdictions. See 14 Am. Jur., Costs, sec. 95, p. 62; 20 C. J. S., Costs, sec. 310, pp. 556, 557.
In the present case we did not enter a final decree in favor of the appellant, the city. We remanded the cause to the lower court, with directions that it apply certain principles in arriving at the correct amount due each of these claimants. The result is, not that the improvement companies were or will be deprived of the ability to recover *875anything of the city, but merely that their ultimate recoveries were or will be reduced.
Since the principal amount of the claim of Windsor Farms, Incorporated, $279,521, was no longer in dispute, the city, on the date of the entry of the final decree, paid into court a sufficient amount to satisfy the award, the effect of which was, of course, to stop the running of interest thereon. However, the net result of the litigation is that this creditor has recovered a substantial amount from the city. The fact that the appellate court has not allowed as much interest as the creditor claimed, or as the lower court allowed, is no reason why the creditor should be deprived of costs in the lower court which are incidental to its judgment.
The same is true of the claim of Grove Improvement Corporation. Even under the principles laid down in our former opinion, this creditor will recover of the city approximately $29,000. The fact that the appellate court has reduced the amount recovered by the creditor should not deprive it of its costs incurred in the court below, and which ordinarily would follow the judgment.
In view of the claims made by the respective parties in the lower court, and the results obtained there, that tribunal might possibly have divided or apportioned the costs. But the statute3 leaves that to the discretion of the lower court and not the appellate court.
The situation here is not like that in McLean v. Hill, 185 Va. 346, 38 S. E. (2d) 583, cited by the city. There several parties, in effect, laid claim to a fund. The more those in one class received, the less there would have been for those in the other class. Although McLean and Wright, creditors in one class, were successful both in establishing their claims and in repelling those of their adversaries, the lower court assessed one-third of the costs against McLean and Wright. We held that since McLean and Wright had substantially prevailed in the court below, no part of the costs should have been assessed against them.
*876Following our indicated practice in such matters, we might properly have left the allowance of the costs in the lower court to await the entry of a final decree there. But these costs included appraisers’ fees allowed by the court and the amount is large. The matter is made the subject of an assignment of error in the petition for appeal and has been fully argued before us. Hence, we should decide it now rather than defer it until another appeal which would likely follow.
For these reasons, as well as those set forth in the majority opinion handed down today, I think our previous opinion (185 Va. 176, 37 S. E. (2d) 873) should be modified to the extent indicated.
Mr. Justice Spratley concurs in these views.
Michie’s Code of 1942, section 5222k; Acts 1924, ch. 468, p. 713, as amended by Acts 1940, ch. 390, p. 686.
See Note 1, supra. The same result would have been reached had the lower court applied Code, section 3527, governing the allowance of costs in equity causes, or Code, section 3525, with reference to costs in actions at law. Under the first the allowance of costs is within the discretion of the court. Under the latter costs follow the judgment.
Note 1, supra.