20 N.H. 241 | Superior Court of New Hampshire | 1850
The case of Barrington’s petition, decided
The question then arises upon what rule the costs are to be taxed, where the town is the prevailing party, against those who have made themselves defendants by appearing in court and resisting the application. On the part of the petitioners the claim is that the defendants should be liable for all the costs of the proceedings from the commencement, while the petitioners resist the allowance of any costs which the town are bound to incur, though there is no appearance, and the allowance of the expense of the commissioners.
A petition like this differs in many-respects from a suit at common law. It is in its commencement an ex parte proceeding. Neither the original petitioners, at whose instance the road was laid out, nor the parties whose interests are to be directly affected by the discontinuance, are named in the petition, or are in any way parties to the proceedings; and it often happens, and always may happen, that the case continues to be an ex parte proceeding till its final termination.
The court, in obedience to the first great rule in all judicial proceedings, that no decision is ever to be made adversely to the interest of any man, without giving him an opportunity to be heard, direct notice of the proceedings to be given, that all persons who have an interest in the matter may appear and be heard, if they think proper.
Parties interested to prevent the discontinuance are not
The cases then being parallel in principle, the same rule ought to be applied in the taxation of costs; that is, the persons coming in and defending are to be charged with the costs arising from their interference, and with no others.
The costs necessarily incurred by tbe town, before the appearance of any person adversely interested, are neither caused by the appearance of those parties, nor increased nor affected by such appearance. "With .these costs, then, they are not chargeable.
The costs of calling out the road commissioners are also indispensable for the success of the application of the town, and must be equally incurred, whether there is an appearance or not. For these the respondents are in no wise chargeable.
The fees of the commissioners stand on ground somewhat different. As we understand, the compensation of this board is, by tbe policy of our statutes, to be paid by tbe public, or those bodies which represent the public; that is, by the county, in eases where roads affect several towns, and by the town where the road to be affected is situated in a single town. It is not properly charged in the bill of costs to be recovered by the town.
Judge Bell first took part in the decisions of the court at the present term.