161 Mass. 32 | Mass. | 1894
The directors of the Boston and Albany Railroad Company presented a petition to the Superior Court, under the first section of St. 1890, c. 428, for the abolition of three grade crossings in the town of Charlton, and, as appears from the report of the presiding justice, commissioners were duly appointed who reported “ in favor of the abolition of said crossings, and the way and manner of changing and separating the grades at said crossings, and their report was duly accepted by the court. In carrying out the provisions of said report it was necessary to take the land of various persons whose names appear in the auditor’s report in this case.” This land was taken for the alteration of the grade of public ways, and by the fifth section of the statute it was primarily to be paid for by the town, and in case the parties interested could not agree upon the damages either party had the right to have the damages determined by a jury in the Superior Court in the same manner as damages are determined for the taking of land for the laying out of public ways. The report of the case to this court also states as follows: “ The town of Charlton employed counsel to settle land damage claims in cases where the parties refused to accept the amount assessed by the selectmen, and to defend petitions brought against said town to recover damages for the taking of land. All claims, including such suits, were settled for sums satisfactory to the railroad and the Commonwealth. The charges of counsel for services in settling claims, appearing in, and preparing the defence in said suits, amounted to $150,
The third section, among other, things, provides as follows: “ The railroad companies shall pay sixty-five per centum of the total actual cost of the alterations, including in such cost the cost of the hearing and the compensation of the commissioners and auditors for their services, and all damages, including those mentioned in section five of this act; and the said commission shall apportion the remaining thirty-five per centum of said cost between the Commonwealth and the city or town,” etc.
The seventh section provides as follows: “ The court shall appoint an auditor, ... to whom shall from time to time be submitted all accounts of expense, whether incurred by the railroads, city, town, commission, or auditor, who shall audit the same and make report thereon to the court; which auditing, when accepted by the court, shall be final,” etc.
The argument is that the enumeration in the third section of the items to be included in the cost to be paid must be taken to exclude other expenses, such as those incurved in defending suits for land damages. It is suggested that by the Public Statutes the prevailing party will recover his costs of suit, and that these are presumed to be all the costs of suit which the law intends should be paid in the absence of special provision for counsel fees and expenses. But we have been shown no provision of statute which declares how, in such a ease as this is, it can be determined which is the prevailing party. Either party may apply to the Superior Court for a jury, If they cannot agree upon the damages. There is no previous award such as is made a condition of awarding costs in Pub. Sts. c. 49, § 105. See Gifford v. Dartmouth, 129 Mass. 135; St. 1881, c. 122.
It is apparent, we think, that the Legislature In St. 1890, e. 428, has not specially provided for counsel fees and other charges
We do not know what the extra services of the selectmen were, for which the town has paid. We must assume from the finding of the auditor that this was a proper payment, and we think that the sum paid should be allowed. See New Haven & Northampton Co. v. Hayden, 117 Mass. 433 ; Lindsey v. Parker, 142 Mass. 582. Decree accordingly.