Basin Electric Power Cooperative v. Lang

WOLLMAN, Chief Justice.

Appellants are the individual owners of land in Campbell County, South Dakota. Appellee, Basin Electric Power Cooperative, commenced condemnation actions against appellants to obtain perpetual easements and rights-of-way over their separate tracts for the construction and operation of a 500,-000 volt electrical transmission line. By stipulation and order, the individual cases were consolidated and tried before a jury. The jury returned verdicts for appellants in the following amounts:

Delano Lang $4,700
Elmer F. Lang 5,500
Jacob Lang 6,200
Monrad Vikse 4,000

At the conclusion of the trial, appellants contended that appellee' should also pay costs of $17,071.50. After a hearing, the trial court ordered taxation of costs against appellee of only $937.88. Appellants appeal from the judgments entered upon the jury verdicts and from the order of taxation of costs. We affirm.

Appellants’ first contention is that the trial court committed reversible error in admitting Exhibit 41 into evidence. Exhibit 41 is a seventeen-page booklet entitled “Working Under High Voltage Transmission Lines — 500,000 Volts or Less.” This *717booklet was compiled, published and distributed to various landowners by appellee. It attempts to explain the characteristics of high voltage lines, the effects of the lines on everyday living and how to work safely around the lines.

The issue at trial was the just compensation due the landowners for the decrease in value of their land sustained as a result of the high voltage line. During cross-examination of one of appellee’s witnesses, however, appellants’ counsel questioned whether appellee had informed landowners of the existence of the electric field around a high voltage line, and of studies regarding the possible effects thereof. The booklet was later introduced by appellee for the sole purpose of refuting appellants’ contention that no information on possible effects of the high voltage line had been given to the affected landowners. The trial court admonished the jury that the only purpose of Exhibit 41 was to show what the landowners had been told and informed the jury that they did not have to accept the information in the booklet as accurate unless substantiated by other sources. The trial court and counsel made no further mention of the booklet. SDCL 19-12-3 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.... ” The question whether such evidence should be excluded rests largely in the discretion of the trial court. Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977).

Although we are cognizant of appellant’s contention that Exhibit 41 contains some erroneous statements as well as information not otherwise litigated at trial, we conclude that the trial court did not abuse its discretion in view of the limited purpose for which the safety handbook was admitted and the trial court’s admonition to the jury. We note that during the five-day trial nineteen witnesses testified and fifty-eight exhibits were introduced into evidence. Jurors are presumed to understand and to follow the court’s instructions. Mid-America Marketing Corp. v. Dakota Industries, Inc., 289 N.W.2d 797 (S.D.1980). There is no showing in the record that the jurors failed to understand or to follow the trial court’s admonition regarding the limited purpose for which the challenged exhibit was received.1

Appellants’ second contention is that the trial court erred in refusing to tax certain costs against appellee. Appellants’ statement of costs totaled $17,071.50, which included expert witness fees and actual travel expenses in the amount of $10,505.36 for the two electrical engineers who testified on behalf of appellants. Pursuant to SDCL 19-5-1, the trial court allowed mileage at the rate of fifteen cents per mile and witness fees of four dollars per day.2 Pursuant to SDCL 15-17-4, the trial court allowed as costs the transportation expense involved in *718procuring evidence.3 The costs allowed by the trial court totaled $937.88.

“[T]he taxation of costs was unknown to the common law, and the courts are without the inherent power to tax costs. The authority to tax such costs should not be implied, but must rest upon a clear legislative grant of power to do so.” City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D.1979). “[I]tems of expense includible as costs can be taxed only by virtue of legislative enactment.” State Highway Commission v. Hayes Estate, 82 S.D. 27, 44, 140 N.W.2d 680, 689 (1966). We conclude that the legislature has set forth in SDCL 19-5-1 and SDCL 15-17-4 the guidelines for determining the costs in question. Accordingly, the trial court did not err in taxing costs against appellee at the statutory rates and for the items allowed rather than in the amounts and for the purposes requested by appellants.

The judgments and order are affirmed.

DUNN, MORGAN and FOSHEIM, JJ., concur. HENDERSON, J., dissents.

. It may readily be conceded that the booklet, containing as it does attractive color photographs that portray, among other things, domestic and wild animals clustered contentedly on and about the supporting towers of an electrical transmission powerline, depicts rather idyllic, if not Edenic, settings, both rural and urban, of transmission lines of the type to be built upon appellants’ properties. We are not prepared to say, however, that the members of a Campbell County jury would be so beguiled by the beauty of the scenes depicted as to disregard the trial court’s admonition that they were to consider as factual only that evidence supported by in-court testimony.

. At the time the order to tax costs was entered, SDCL 19-5-1 provided in pertinent part:

Every witness shall be entitled to receive, for each day’s attendance before any court, board, or tribunal ... in all civil and criminal cases, four dollars, and for each day’s attendance in magistrate’s court or before any judge acting as a committing magistrate, three dollars, and for each mile actually traveled by the usual route of travel, one way fifteen cents. Such mileage shall be limited to the distance from the place of trial to the point where such witness first entered the state, if he comes from without the state.

SDCL 19-5-1 has since been amended and the dollar amounts increased. 1980 S.D.Sess. Laws ch. 171.

. SDCL 15-17-4 provides:

In all cases where a party is allowed to recover costs the clerk must also tax as a part of the judgment the allowance of such party’s witnesses’, interpreters’, translators’, officers’, and printers’ fees, fees for the service of process, filing fees and the necessary expense of taking depositions and procuring necessary evidence.