
    Submitted and argued July 5,
    affirmed July 19, 1961
    STATE HIGHWAY COMMISSION et al v. GLASER et al
    (3 Cases)
    363 P. 2d 1081
    363 P. 2d 1082
    363 P. 2d 1083
    
      Charles Peterson, Assistant Attorney General, of Salem, argued the cause for 'appellant. With him on the brief were Robert Y. Thornton, Attorney General, Salem, L. I. Lindas, Assistant Attorney General and Chief Counsel for the Oregon State Highway Commission, Salem, and Leslie B. Hampton, Assistant Attorney General, Salem.
    
      W. C. Winslow, Salem, argued the cause for respondents. On the brief was Norman K. Winslow, Salem, and Orval N. Thompson, Albany.
    Before McAllister, Chief Justice, and Bossman, Perry, Sloan, O’Connell, Goodwin and Lusk, Justices.
   PER CURIAM.

This is a proceeding brought by the State Highway Commission to condemn land in Linn county for the purpose of relocating the Pacific Highway. The case was tried to a jury which fixed the damages to be paid defendants. The judge then fixed the attorney’s fee to be allowed the defendants pursuant to OBS 366.380(9) and entered judgment condemning the property for public purposes. The commission appealed from that portion of the judgment awarding defendants an attorney’s fee. The assignments of error ask this court to review and modify the finding of the trial court by reducing the amount of the attorney’s fee allowed.

In an action at law we are 'limited to determining whether the finding of the trial court is supported by substantial competent evidence. Since there is no contention in this case that the finding of the trial court is not adequately supported by the evidence, the finding cannot be disturbed by this court and the judgment is affirmed. See State Highway Commission v. Kendrick decided this day.

Charles Peterson, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General, Salem, L. I. Lindas, Assistant Attorney General and Chief Counsel for the Oregon State Highway Commission, Salem, and Leslie B. Hampton, Assistant Attorney General, Salem.

W. C. Winslow, Salem, argued the cause for respondents. On the brief was Norman K. Winslow, Salem, and Orval N. Thompson, Albany.

Before McAllister, Chief Justice, and Rossman, Perry, Sloan, O’Connell, Goodwin and Lusk, Justices.

ROSSMAN, J.

This is an appeal by the state through its Highway Commission from a judgment of the circuit court which (a) condemned for public purposes land in Linn County owned by the defendants and (b) pursuant to OKS 366.380(9) awarded to the defendants a sum of money, as a fee, payable by the state, for the services performed by the defendants’ attorney in the condemnation action. The condemnation features of the case were tried by a jury; the amount of the fee was determined by the trial judge.

Robert T. Thornton, Attorney General, Salem, L. I. Lindas, Assistant Attorney General and Chief Counsel for the Oregon State Highway Commission, Salem, Charles Peterson, Assistant Attorney General, Salem, and Leslie B. Hampton, Assistant Attorney General, Salem, for appellants.

This appeal challenges only the amount of the fee. It seeks a reduction of that sum.

As held in State of Oregon, by and through its State Highway Commission, v. Kendrick, this day decided, a condemnation proceeding is deemed by our practice as an action at law. The functions of this court in appeals of actions at law do not embrace a retrial of the facts if the findings, general or special, are supported by substantial competent evidence. Since the state, as appellant, does not argue that the amount of the fee lacks support by competent, substantial evidence we are not at liberty to consider any revision of the amount of the fee. The assignment of error is lacking in merit, as is apparent from the carefully reasoned opinion written by our Chief Justice in the Kendrick case.

The challenged judgment is affirmed.

Norman K. Winslow, Salem, and Orval N. Thompson, Albany, for respondents.

Before McAllister, Chief Justice, and Rossman, Perry, Sloan, O’Connell, Goodwin and Lusk, Justices.

PERRY, J.

This is a proceeding brought by the State Highway Commission to condemn land in Linn County for the purpose of relocating the Pacific Highway. The case was tried to a jury which fixed the damages to be paid defendants. The judge then fixed the attorney’s fee .to be allowed the defendants pursuant to ORS 366.380(9) and entered judgment condemning the property for public purposes. The commission appealed from that portion of the judgment awarding defendants an attorney’s fee. The assignments of error ask this court to review and modify the finding of the trial court by reducing the amount of the attorney’s fee allowed.

This case is controlled by our decision in State of Oregon, by and through its State Highway Commission v. Kendrick, 227 Or 608, 363 P2d 1078, on this day decided.

The judgment is affirmed.  