(dissenting). My personal feelings are on the side of the landowner in this case, and in most other eminent domain cases. A citizen buys property with his own money, pays taxes, and improves his property under the belief that his home is his castle. Then one fair day some public agency — be it the Highway Commission, the Housing Authority, or what not —decides to take the citizen’s property because the Legislature has granted such public agency the power of eminent domain!
And what happens ? The citizens is hailed into court; the public agency, with the power of eminent domain, makes the citizen either accept the small amount determined ex parte by the public agency to be the value, or else the citizen, at his own expense, must employ an attorney and fight the public agency to get what the citizen feels he is entitled to receive. Finally, the citizen gets a jury verdict in his favor for the value of the property taken by the public agency; but the citizen does not recover from the public agency the amount the citizen has paid for attorney’s fees; so the citizen is never made whole!
Under the Workmen’s Compensation Law the claimant gets his attorney’s fee' (Ark. Stat. Ann. § 81-1332 [Repl. 1960] ). Under the Insurance Law the policy holder in some cases recovers his attorney’s fee (Ark. Stat. Ann. § 66-514 and § 66-524 [Repl. 1957] ). But the citizen landowner never gets his attorney’s fee from the public agency that takes his property. Why? Simply because the Legislature has never seen fit to enact legislation which gives the citizen landowner his attorney’s fee in condemnation matters; and the matter of awarding attorney’s fee and costs is in the discretion of the Legislature. I think attorney’s fees should be allowed in all eminent domain cases; but my personal feelings do not make the law. I am sworn to enforce the acts of the Legislative Department and to be guided by our former cases. So in the case at bar I lay aside my personal feelings and proceed to view the case as a judge; and, as such, I must dissent from the Majority holding.
There is no sound distinction between this case and our holding in Selle v. City of Fayetteville, 207 Ark. 966, 184 S. W. 2d 58. We there recognized that if the condemnor had not taken possession of the property before the jury’s verdict, then the condemnor, if dissatisfied with the verdict, could dismiss the case. That identical situation exists in the case at bar. We certainly should not overrule the Selle case because the great weight of authority throughout the nation is in accord with our holding in Selle v. Fayetteville, supra. In Nichols on Eminent Domain, Third Edition, Volume 6, § 26.42, cases from a score of jurisdictions are cited to sustain this textual statement:
“In the states in which condemnation is effected by judicial proceedings it is almost universally held that the mere fact that compensation has been assessed does not prevent a discontinuance of the proceedings. In fact, one of the strongest arguments in favor of this method of exercising the power of eminent domain is. the public policy requires the cost of a public improvement to be ascertained before it can be finally determined that it is advisable to undertake the work, and that this cannot be done until the compensation for the land taken has been finally assessed by the jury or other tribunal required by the constitution o rstatutes. The award in such states is merely an offer which the public agency contemplating the work may accept or decline as it sees fit.”
In 92 A.L.R. 2d 355 there is an annotation entitled “Liability, upon abandonment of eminent domain proceedings, for loss or expenses incurred by property owner, or for interest on award or judgment.” In discussing the liability of the condemnor for attorney’s fees, the text on page 366 reads:
“In the absence of a statute expressly imposing liability, it has usually been held that a condemnee is not entitled to a recovery for his attorney fees, expenses, or disbursements in connection with eminent domain proceedings by the federal government or a state government, or by an agency of either, upon the abandonment of the proceedings by the condemnor.”
Page after page of cases are cited and discussed to sustain the above quoted statement. There can be no doubt that the law is, or has been until the present Majority holding, that in the absence of a statute so declaring, the landowner cannot recover attorney fees if the condemnor dismisses the condemnation proceeding. In Romer v. Leyner, 224 Ark. 884, 277 S. W. 2d 66, this Court reaffirmed its statements from earlier cases as follows: “Attorney’s fees are not ordinarily held to be an element of damages which may be recovered for breaches of contract. Attorney’s fees cannot be allowed as costs in suits except as provided by statute, the same being regarded as a provision for a penalty and not to be enforced in the state courts.”
As regards the recovery of expert witness fees, Ave have specifically held that there cannot be a recovery in the absence of statute. Ark. Game & Fish Comm. v. Kizer 222 Ark. 673, 262 S. W. 2d 265, 39 A.L.R. 2d 1372; Ark. State Highway Comm. v. Union Planters Bank, 231 Ark. 907, 232 Ark. 200, 333 S. W. 2d 904, 334 S. W. 2d 879.
To overcome all these cases and reach the result that it desires, the Majority now, in effect, overrules Sello ^ Fayetteville, supra, and also says in effect that when the condemnor dismisses its case thén the Court will consider whether the condemnor was in bad faith in ever commencing the case. Such a holding is contrary to all the cases that I have found; and the Majority Opinion cites no case to support it. To say the least, the Majority holding in this case is certainly legislative enactment by judicial decision. I submit that it would be far better for this Court to follow the law than to start enacting statutes to reach a desired result.
So because, as I see it, the law is clearly against the Majority holding, I must dissent in this case.