Opinion
No. 21342
Original opinion argued January 25, 1974
Affirmed March 18, 1974 Mandate recalled May 30, 1974 Modified July 29, 1974 Petition for review denied September 4, 1974 See original opinion Vol. 16 Or. App. 647
Appeal from Circuit Court, Union County.
W. F. BROWNTON, Judge.
George H. Corey, Steven H. Corey, and Corey, Byler Rew, Pendleton, for petition.
No appearance contra.
Before SCHWAB, Chief Judge, and FORT and TANZER, Judges.
MANDATE MODIFIED.
Respondents petitioned for review contending that we erred in denying their motion for attorney fees on appeal in this condemnation case.
Attorney fees are available to a successful litigant only when so provided by the Constitution or by statute. The rule applies with full force to condemnation suits. Multnomah County v. Burbank, 235 Or. 616, 618, 386 P.2d 444 (1963).
This suit was commenced on June 28, 1971. Defendants point to former ORS 366.380 (9), applicable to actions commenced prior to September 9, 1971, as the statutory source of the court's authority to award attorney fees on appeal. That section, however, applies to attorney fees for trial. Highway Commission v. Hursh, 245 Or. 378, 422 P.2d 266 (1966). No other statutes authorize such fees and the constitutional prohibitions against public taking, Art. I, § 18, and Art. XI, § 4, Oregon Constitution, do not of themselves authorize such fees. Re Petition of Reeder, 110 Or. 484, 495, 222 P. 724 (1924).
The mandate will issue without provision of reasonable attorney fees.