State Highway Commission v. Hursh

This is a condemnation action brought by the State Highway Commission. The issue of compensation for the taking was determined by the jury. The jury’s award was greater than the amount tendered defendants before the commencement of the action. As a consequence, defendants were entitled to an attorney’s fee. The trial judge, after a hearing, fixed the amount of the attorney’s fee. Plaintiff contends that in the absence of a waiver of jury trial the propriety and amount of the attorney’s fee is an issue of fact for the jury. The controlling statute is OES 366.380 (9), which reads as follows:

“(9)…