(dissenting).
I respectfully dissent. I would affirm the result reached by the trial court.
Plaintiff River Bend Farms, Inc., (RBF) contends that section 472.33, The Code, (attorney fees on appeal in eminent domain cases) applies to appeals pursuant to section 455.93, The Code (appeals in drainage and levee district cases) on the basis that chapter 472 provides the procedures for chapter 455 actions.
The contention of RBF necessitates an analysis of sections 455.104 and 472.33, The Code. Section 455.104 provides, in regard to appeals from levee district damage awards to the district court: “Unless the result on the appeal is more favorable to the appellant than the action of the board, all costs of the appeal shall be taxed to the appellant, but if more favorable, the cost shall be taxed to the appellees.” Section 472.33 provides in regard to the analogous appeal from the eminent domain compensation commission award to the district court: “The applicant shall also pay all costs occasioned by the appeal, including reasonable attorney fees to be taxed by the court, unless on the trial thereof the same or a less amount of damages is awarded than was allowed by the tribunal from which the appeal was taken.”
RBF essentially asserts that since section 455.104 does not expressly provide for attorney fees, section 472.33, which does allow for such fees, can be applied to chapter 455 appeals by virtue of section 472.1, which provides: “The procedure for the condemnation of private property for works of internal improvement, and for other public uses and purposes, unless and except as otherwise provided by law, shall be in accordance with the provisions of this chapter.” In other words, plaintiff urges us to find that chapter 455 does not provide a specific procedure excepted from the general eminent domain procedure of chapter 472, at least in regard to costs and attorney fees on appeal. This I cannot do.
“The general rule is that attorney’s fees are not allowable in the absence of statute or an agreement by the party to be charged.” Smith v. Board of Supervisors of Des Moines County, 320 N.W.2d 589, 593 (Iowa 1982) (citing Frost v. Cedar County Board of Supervisors, 163 N.W.2d 432 (Iowa 1968)); Id. at 434 (“The right to recover attorney fees as part of the costs of litigation does not exist at common law and such fees are not allowable in the absence of statute . . . ”); Virginia Manor, Inc. v. City of Sioux City, 261 N.W.2d 510, 513 (Iowa 1978) (“Ordinarily attorney fees are not recoverable as costs unless explicitly provided for by statute.”); City of Ottumwa v. Taylor, 251 Iowa 618, 622, 102 N.W.2d 376, 378 (1960); 30 C.J.S. Eminent Domain § 386 at 442-43 (1965); see also Summit Valley Industries v. Local 112, United Brotherhood of Carpenters and Joiners of America, - U.S. -, -, 102 S.Ct. 2112, 2114, 72 L.Ed.2d 511, 515 (1982) (“Under the American Rule it is well-established that attorney’s fees ‘are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.’ ”). “At common law court costs were not allowed under that name. They are now taxable only to the extent provided by statute. Such statutes are generally strictly construed as in derogation of the common law.” Taylor, 251 Iowa at 621, 102 N.W.2d at 378.
In past cases we have repeatedly used an approach of strict construction to deny claims for attorney fee awards in condemnation cases outside of the general eminent domain procedure. In Frost v. Cedar County Board of Supervisors, 163 N.W.2d 432 (Iowa 1968), we faced the question of whether section 472.33 applied to county condemnation proceedings instituted under sections 306.21-29, The Code (1966) (improvement of secondary roads), so as to allow attorney fees when the amount of damages was increased on appeal to district court. Id. at 433-34. We found that section 306.29, The Code (1966) (“Appeals. Claimants for damages may appeal to the district court from the award of damages in the manner and time for taking appeals from the orders establishing highways generally”), did not support application of section 472.33 to chapter 306 condemnation *466proceedings. Id. We then reasoned that section 306.29 related “only to time and manner of taking appeals from orders establishing highways generally” and was not sufficiently specific authorization for the taxing of attorney’s fees in chapter 306 condemnations. Id. at 434. Contrary to the majority’s statement, there is no indication the Frost court itself overlooked section 306.13, The Code (1966), or that the outcome of the case would have been different had that statute been discussed by that court.
In Nichol v. Neighbour, 202 Iowa 406, 210 N.W. 281 (1926), the condemnee urged application of section 7852, The Code (1924), which allowed taxation of attorney’s fees as costs, to appeals from awards of damages in proceedings to relocate highways under section 4617, The Code (1924). Section 4617 provided for appeal “in the manner and time for taking appeals from the orders establishing highways generally.” Section 4601 provided for the award of costs in highway relocation appeals. Id. at 407, 210 N.W. at 282. We found no express statutory authorization for taxation of attorney fees as costs under section 4617 and denied recovery. Id. at 408, 210 N.W. at 282.
Similarly, in Jones v. School Board of Liberty Township, 140 Iowa 179, 118 N.W. 265 (1908), the issue arose as to the availability of attorney’s fees on appeal of proceedings for the condemnation of land for school district purposes under section 2815, The Code (1897). We declined to adopt the provisions of section 2007, The Code (1897), which would have permitted taxation of attorney’s fees as part of the costs of the appeal to the district court, to the section 2815 appeal. Id. at 182, 118 N.W. at 266. Section 2815, The Code (1897), provided: “From the assessment so made, either party may appeal to the district court by giving notice thereof, as in case of taking private property for works of internal improvement within twenty days after receiving notice of the award made.” In reaching our holding that no attorney’s fees were available for the section 2815 appeal, we made the following statements which apply with equal force and persuasion to the present case:
[Sjection 2815, under which the proceedings in the case at bar were had, is quite complete in and of itself. It provides a method of proceedings somewhat different from the other chapter of the Code
Section 2815 does not, in terms, adopt the “provisions” of any other section, or group of sections. Section 2007 relates wholly to the subject of costs, and it provides that reasonable attorney fees are to be included as part thereof. Section 2815 has its own provisions concerning costs, and they are substantially the same as the provisions of section 2007, except as to the item of attorney’s fees. If the proceedings were to be controlled by section 2007, then it was quite useless to deal with the subject of costs in section 2815.
Id. at 181, 118 N.W. at 265-66 (emphasis supplied).
Frost, Nichol and Jones refused to expand the general condemnation procedure award of attorney fees into special condemnation procedures. The same approach and result is even more appropriate in our analysis of section 455.104, The Code, because that section makes no reference to adoption of appeal procedure as in other condemnation cases.
Harris v. Green Bay Levee and Drainage District No. 2, 246 Iowa 416, 418-19, 68 N.W.2d 69, 70 (1955), cited by the majority, only states the obvious — that chapter 472 applies as to condemnation procedure “unless and except as otherwise provided by law.” Chapters 455 and 457 provide otherwise. They cover the procedure for taking land and awarding compensation in a levee district and also outline in meticulous detail the procedure for appeals to the district court. §§ 455.92-108, The Code. Section 455.104 covers costs on appeal and the legislature specifically did not provide that attorney fees be a part of those costs to be paid by the levee district taxpayers. As stated in Jones, 140 Iowa at 181, 118 N.W. at 265-66, it would be useless for the legislature in the specific chapter on levee dis*467tricts, to deal with costs on appeal in section 455.104 if the general condemnation chapter —472—-and its costs section — 472.33—were to apply.
A comparison of sections 472.33 and 455.-104 leads me to the conclusion that the legislature knows how to provide for allowance of attorney’s fees when that result is intended but chose not to allow such awards in proceedings under chapters 457 and 455. See Walters v. Bartel, 254 N.W.2d 321, 323 (Iowa 1977). RBF has sought a “strained construction of the statute in an effort to show an expressed statutory provision for allowance of attorney fees.” Frost, 163 N.W.2d at 435. I find no merit in RBF’s contention and would hold that attorney’s fees are not taxable as costs under section 455.104, and that section 472.33 does not apply here. Although trial court relied upon a different ground to deny plaintiff’s claim for attorney’s fees, I would affirm that denial. Citizens First National Bank v. Hoyt, 297 N.W.2d 329, 332 (Iowa 1980).
UHLENHOPP, J., joins in this dissent.