DISSENTING OPINION.
Hart, J.I dissent. There were three commissioners in this road district. Each of them testified that, after the preliminary survey had been made and the plans and specifications of the cost of building the road, together with the blue-prints, had been furnished to the commissioners, it was decided that the road would cost too much, and no further effort was made towards its construction; that the engineer appeared before the board and asked the commissioners to issue him warrants for the amounts expended by him in making the preliminary survey, preparing the estimates, and making the blue-prints, and that he said $2,200 or $2,300 would cover all of his expenses. The commissioners issued him a warrant for $2,500. This was shortly after the work had been done, and the engineer certainly knew what it cost him. He now claims that the commissioners misunderstood him, and that he was only referring to the cost of the field work. The commissioners testify that he was referring to the whole expense, and there seems to be no good reason why he should wish to pay for the expense of the field work rather than for the cost of the office work. There is nothing in the record to indicate that the engineer’s testimony is entitled to more weight than that of the commissioners. Their testimony is in direct and irreconcilable conflict, and I am of the opinion that the testimony of the commissioners is corroborated by other facts and circumstances in the record.
To illustrate; in making up his items of the cost of the survey, the. engineer charges the district with the expense of two instruments men for thirty-five days at $10 per day, or a total of $700. He admits that he only paid one of them $175 per month and the other $125. They cost him then approximately $350 or $400, and the district should not be charged with more than that sum. He charges the other four men at $4 per day when they were not paid more than $80 per month each. He then charged the district $853.35 for gasoline, repairs, depreciation on a Ford and second-hand Overland car used by him in carrying his employees to and from the work while making the preliminary survey of the road. This, to my mind, is a very extravagant charge. It is true, the chancellor did not allow this much, but the fact that the engineer charged it shows the extravagance of his charges.
The engineer admits that he did not keep book accounts, and his claim is based upon estimates made more than a year after the work was finished. The only corroboration of his testimony is that of other engineers that his estimates are reasonable. I do not think this had the effect to overcome the positive evidence of the three commissioners as above stated.
I am of the opinion that the court should only have allowed him what the commissioners testify he told them at the time had been the actual cost of making the survey and preparing the estimates and blue-prints from the field notes and in addition a reasonable amount for his supervision of the work.
While preliminary work must be done, and its cost must be met.by landowners, I am of the opinion that the courts should strictly limit it to the actual cost of doing the work with a reasonable allowance to the engineer for his supervision. He should not be allowed to claim that he has kept no books and by a system of estimates charge the district with extravagant sums far beyond that which he has expended.
It is true that the sums claimed by the engineer in this case ate more reasonable than the amounts claimed by engineers in some other cases which have come before us, but courts should require claimants for preliminary expenses to make .proof of the amounts actually expended by them, and should not allow them extravagant estimates on the specious plea that they have not kept an account of their éxpenses.
Judge Wood concurs in this dissent.