Dissenting
I respectfully dissent because I am compelled to believe that Fed. R. Civ. P. 54(d) does not have any operative effect in condemnation cases. I view Fed. R. Civ. P. 71A(1) as effectively neutralizing the operation of Rule 54(d) in condemnation proceedings. I conclude that before an award of costs and attorney’s fees may be made against the Government of the Virgin Islands in a condemnation case, specific statutory authority must be found in Virgin Islands law to support such an award. I am convinced that no such authority exists in the Virgin Islands Code.
*599In ordinary civil cases, costs are awardable as a matter of course to the prevailing party unless otherwise directed by the court under Rule 54(d). Condemnation actions, however, have never been regarded as ordinary civil proceedings and the procedure to be followed in such cases is specially set forth in Rule 71A. Rule 71A(1) provides that costs in condemnation cases “are not subject to Rule 54(d).” I read this rule to be a simple declaration that the normal rule on costs in civil proceedings under Rule 54(d) is not applicable to condemnation cases. See United States ex rel. T.V.A. v. Easement & Right-of-Way, 452 F.2d 729, 730 (6th Cir. 1971). See also, 12 Wright & Miller, Federal Practice and Procedure, § 3056 at 158.
Indeed, there is good reason to view Rule 71A(1) as neutralizing the operation of Rule 54(d). The majority acknowledges the difficulties encountered in ascertaining which party prevails in condemnation proceedings, a consideration that militates against applying the normal Rule 54(d) provision on costs. Maj. Op. at 593-94. The general rule in the United States is that costs are not allowable in a condemnation case unless specifically provided for by statute. 4A Nichols, Law of Eminent Domain, § 1429 at 14-352-54.1 I read Rule 71A(1) as codifying this basic view. Yet, the majority believes that when stripped of its limitations, Rule 54(d) provides some authority for the award of costs in condemnation proceedings despite the negating language of Rule 71A(1). Maj. Op. at 594.
*600Although I believe that Rule 71A(1) completely neutralizes the operation of Rule 54(d) in condemnation cases, this is not to say that costs can never be awarded in such cases, and in this respect, I agree with the majority that Rule 71A(1) makes no such sweeping prohibition. The Committee Note to Rule 71A (1) observes:
Without attempting to state what the rule on costs is, the effect of subdivision (1) is that costs shall be awarded in accordance with the law that has developed in condemnation cases.
28 TJ.S.C.A. Rule 71A(1) at 590 (1976). See 12 Wright & Miller, supra § 3056, at 158. In view of Rule 71A(1), it is evident that whatever authority exists for a costs award is not derived from the application of Rule 54(d), but from whatever statutory law governs condemnation proceedings. It therefore becomes critical that specific statutory authority. exist in the Virgin Islands to authorize a costs award in .a condemnation proceeding.
The majority, however, finds the requisite statutory authorization through the interaction of Rule 54(d), the general Virgin Islands cost provision, 5 V.I.C. § 541(a), and a section of the Virgin Islands condemnation statute, 28 V.I.C. § 415(c). The majority first contends that Rule 54(d) may be construed to grant basic authority to award costs in condemnation cases. Maj. Op. at 594. Next, the majority reasons that specific authority exists in the Virgin Islands to award costs in condemnation cases through the interaction of 5 V.I.C. § 541(a) and 28 V.I.C. § 415(c). 5 V.I.C. § 541(a) permits a court to award certain costs in ordinary civil actions. 28 V.I.C. § 415(c), however, deals with condemnation proceedings and mentions costs and expenses in three different instances. The majority concludes that the inclusion of the term costs in § 415(c) means that costs are awardable if other authority exists for such an award. They see “other” authority in Rule 54(d) and 5 *601V.I.C. § 541(a). Maj. Op. at 594-95. I believe that close examination of these statutory provisions will reveal no support for the majority’s analysis.
Chief Judge Christian in Government of the Virgin Islands v. Approximately 8.4 Acres of Land, 12 V.I. 469, 471 (D.V.I. 1975), after reviewing the legislative history of 5 V.I.C. § 541(a) points out that it was enacted “to fill a gap left open by Rule 54(d) and 28 U.S.C. §§ 1911-1929.” I agree. The problem was that Rule 54(d) did not define what costs were allowable by the court. This definition was provided for the federal courts by 28 U.S.C. §§ 1911-1929. However, these provisions are inapplicable to the Virgin Islands by virtue of 28 U.S.C. § 451. Thus, a local cost counterpart to 28 U.S.C. §§ 1911-1929 was necessary to determine what costs were allowable in the Virgin Islands. V.I.C.A. tit. 5, § 541 at 157. Thus, 5 V.I.C. § 541(a) cannot be considered except as a supplementary provision to Rule 54(d).2
If Rule 71A(1) renders Rule 54(d) inapplicable in condemnation cases, it logically follows that 5 V.I.C. § 541(a) can likewise be given no effect. Section 541(a) is definitional in nature and looks to Rule 54(d) for the basic authority to award costs in ordinary civil actions and not condemnation proceedings. We next turn to 28 V.I.C. § 415(c). The majority concedes that § 415(c) does not “amount to a positive grant of authority to award costs and expenses.” Maj. Op. at 595. Indeed, a close examination of 28 V.I.C. § 415(c) reveals that costs are awardable in a condemnation case only when the public need requires immediate entry into possession of the landowner’s property by the condemnor, or when the condemnor dismisses *602or abandons an action against the landowner, or when no award is made. This is not a specific statutory grant of authority to award costs in all condemnation cases.
The common law clearly prohibited cost awards in condemnation actions in the absence of a special statute. It is an elementary canon of statutory construction that “[t]he legislature is presumed to know the common law before the statute was enacted. . . .” 2A Sutherland, Statutory Construction, § 50.01 at 268 (4th ed. 1973). One must conclude that the legislature of the Virgin Islands only intended § 415(c) to provide certain narrow exceptions to the general prohibition of costs in condemnation cases.
This analysis is confirmed by the construction of an analogous provision allowing costs against the federal government in condemnation cases only in narrow circumstances. In 1966, Congress first provided for cost awards against the federal government. 28 U.S.C. § 2412. In 1970, Congress enacted legislation substantially similar to the legislation enacted by the Virgin Islands in § 415(c) providing for assessment of costs in condemnation cases against the government in the limited situations when (1) the final judgment is that the federal government cannot acquire the property or (2) the government abandons the action. 42 U.S.C. § 4654(a). Courts have read the latter provision to mean that Congress in 1966 did not intend to allow cost awards against the federal government in all condemnation cases. United States ex rel. T.V.A., supra, at 731; United States v. 2,186.63 Acres of Land, Wasatch City, Utah, 464 F.8d 676, 678 (10th Cir. 1972). Rather, cost awards are limited to the narrow exceptions envisioned by 42 U.S.C. § 4654(a). Analogously, 28 V.I.C. § 415(c) must be construed as a narrow exception to the general rule against costs in condemnation cases and not as an indication of legislative intent to authorize cost awards in all such cases.
*603From the foregoing, it is evident that no specific statutory authority exists in the Virgin Islands upon which a costs award in a condemnation case may be based. I therefore would affirm the judgment of the district court.
The same rule applies to attorney’s fees. Moore explains that there is no constitutional problem in requiring a landowner to bear his own attorney’s fee: “The constitutional mandate of just compensation does not require reimbursement of an owner for his attorney’s fees and other 'litigation expenses in defending a condemnation proceeding.” 7-Pt. 2 Moore’s Federal Practice, ¶ 71A.130[3] at 623 (2d ed. 1948). See Dohany v. Rogers, 281 U.S. 362, 368 (1929). The Supreme Court in Dohany stated: “A state may allow the recovery of an attorney’s fee in special classes of proceedings while withholding them in others.” 281 U.S. at 368. Similar reasoning would support the conclusion that there is nothing unconstitutional about requiring a landowner to bear his own costs.
Appellants argue that 5 V.I.C. § 541(a) was not a gap-filler because it was based on a prior Virgin Islands Code. However, the history of § 541 reveals that Rule 54(d) superseded the prior Code. V.I.C.A. tit. 5, § 541 at 157. Thus, I can only conclude that 5 V.I.C. § 541 was enacted specifically to provide the definition of costs in the Virgin Islands for purposes of Rule 54(d).