129 Mass. 135 | Mass. | 1880
A landowner aggrieved by the estimate made by the selectmen of the damages sustained by him by reason of the raising or lowering of a highway or town way, or by the neglect or refusal to estimate the same, may apply for a jury to have his damages ascertained in the manner provided where land is taken in laying out highways. Gen. Sts. c. 44, § 20. The jury thus applied for was formerly ordered by the county commissioners. Gen. Sts. c. 43, § 19. St. 1870, c. 75. By the St. of 1873, c. 261, it is provided that the application for a jury may be made to the Superior Court, and that the trial may be had at the bar of that court.
The petitioners in the cases at bar, having failed to obtain any estimates of their respective damages from the selectmen of the defendant town, applied to the Superior Court for a trial by jury, and obtained verdicts in their favor. Thereupon the clerk of the Superior Court taxed costs for the petitioners, and, the taxation having been affirmed by that court on appeal, the respondent excepts to the ruling of the Superior Court.
It is well settled that proceedings of this nature are not within the statute provision giving costs to the party prevailing in civil actions. Commonwealth v. Carpenter, 3 Mass. 268. Hampshire & Hampden Canal Co. v. Ashley, 15 Pick. 496. Williams v. Taunton, 126 Mass. 287. If, therefore, the petitioners are entitled to costs, it must be by virtue of some special provision of statute relating to this class of proceedings. The petitioners have failed to point out any such provision, and do not cite any case in which it has been decided that costs are recoverable by
In addition to the provision above cited from the General Statutes, is the provision of § 57 of the same chapter, that where several landowners become parties to the proceedings on the petition of one, and have their damages determined by the same jury, each party recovering damages, shall recover his costs; and each party not recovering his damages shall be liable for costs to the town or other corporation of which he shall have claimed damages, in like manner as if the proceedings were under his several petition. This section does not establish any new and independent right to costs, but merely gives the same rights and imposes the same liabilities when the claimants join, which each would have had and would have been under if he had proceeded alone, — the word “ costs” referring to the same class of expenses as in the other section.
It is not necessary that we should consider here the reasons which may have operated on the Legislature to maintain silence on the subject of costs between the parties to the controversy in matters of this kind. They are somewhat discussed by the court in the cases cited at the beginning of this opinion.
As no statute gives costs to the petitioners in cases of this nature, the judgments of the Superior Court for costs against the respondent were erroneous, and must be set aside.
Exceptions sustained.
The St. of 1881, c. 122, is as follows: “In all cases where an award has been made and either party makes application for a jury to the Superior Court under the provisions of chapter two hundred and sixty-one of the acts of the year eighteen hundred and seventy-three, if upon trial damages are increased beyond the award, the party in whose favor the award was made shall recover his costs; otherwise he shall pay costs; and costs shall be taxed as in civil cases.”