#### J. C. JERVIS v. THE TOWN OF MARS HILL.

(Filed 19 October, 1938.)

Eminent Domain § 24—

Where, in an action to recover damages for the taking of land for use as a sidewalk by defendant municipality, the jury finds plaintiff is entitled to recover nothing, the court may properly tax the costs against defendant. C. S., 1725.

Appeal by defendant from Alley, J., at March Term, 1938, of Madi-SON.

Affirmed.

*324 John U. McElroy for plaintiff, appellee.

Calvin B. Edney for defendant, appellant.

Per Ouriam.

This is an action to recover damage for tbe taking of a portion of tbe lot of tbe plaintiff by tbe defendant in tbe construction of a sidewalk. Tbe jury, under appropriate issue, found tbat tbe plaintiff was entitled to recover nothing from tbe defendant and tbe court entered judgment tbat tbe plaintiff take nothing by bis action, but taxed tbe costs against tbe defendant. To tbe taxing of tbe costs against it tbe defendant reserved exception and appealed.

Tbe judgment contains tbe following: “This being in tbe nature of a condemnation proceeding, tbe plaintiff suing to recover damages because of tbe taking of certain lands described in tbe complaint, for tbe defendant’s use as an easement for a sidewalk.” Since tbe facts support this finding, C. S., 1725, warrants tbe taxing of tbe costs against tbe defendant.

Tbe judgment is

Affirmed.