Page:North Dakota Reports (vol. 3).pdf/398

 Nor do we think that the section of the Code which prescribes the measure of damages for the “unlawful occupation” of real property (Comp. Laws § 4601) should be so construed as to change the general rule. Besides the value of the use of the land, the section authorizes the recovery of “the costs, if any, of recovering the possession.” We think the term “costs,” as used in the statute, was intended to have a limited and technical meaning. In general use, the term “costs,” when employed with reference to litigation, embraces both disbursements and specific sums allowed by statute as indemnity to the prevailing party for his expenses. In a narrower sense, the term “costs” excludes disbursements. Giving the term its most liberal signification, it could embrace only the taxable costs and disbursements in an action. The statute regulating costs and disbursements in this state is later in date than that which regulates the measure of damages in cases like this, and if the two enactments were in conflict the former would have to give way, but in our opinion they are not in conflict. The statute allows certain sums as costs to the prevailing party in the cases enumerated in the statute, Section 5191 declares: ‘Costs shall be allowed of course to the plaintiff upon a recovery in the following cases: 1. In an action for the recovery of real property.” The sums allowed by the statute are not discretionary with the court in this class of cases, and the plaintiff can therefore add such sums in taxing the costs to his items of disbursements. Reference to § 5186 shows that the allowances for costs were intended by the legislature to be by way of idemnity for expenditures, including expenditures for attorneys’ fees made by the successful party. Section 4601 constituted one of the sections of the Civil Code which was reported for adoption by the commissioners of the State of New York, See Civil Code of New York reported by the “commissioners of the Code,” p. 576. The section seems not to have been adopted in New York, but it was adopted by the Territory of Dakota, and since then it has been incorporated with the Civil Code of the State of California. So far as we know, this feature