148 A. 412 | Vt. | 1930
This is a motion for judgment upon the report of commissioners, appointed by this Court upon a petition brought under the provisions of G.L. 4067 to locate the division line between the towns of Underhill and Jericho to allow costs against the latter town, including the cost of surveying the line as reported by the commissioners; and to make an order apportioning the expense of marking the line so reported. The prior proceedings in this Court are reported in
No objection whatever is made to the entry of judgment on the report. The only controversy is as to the apportionment of costs and expenses.
G.L. 4074 provides that when a judgment is rendered in such a proceeding as this, the Supreme Court may allow costs against either town or apportion the same among the towns as seems just, and shall make an order apportioning between the towns the expense of marking the division line. *369
The report of the commissioners was adverse to the claim of the defendant town, and certain lands formerly regarded as a part of that town and taxed by it were found to be within the charter limits of the petitioner. It is argued that the same practice should apply in cases of this kind as in proceedings in equity, in which the general rule, in the nature of a principle, is that the prevailing party shall prevail as to costs as well as to the subject-matter of the suit, and that this rule is to be enforced unless the case discloses a reason why it should not be done and that the discretion of the Court is called into exercise only when the case discloses a show of reason, more or less strong, why costs should not be so given. Doty v. Village of Johnson,
Without deciding whether the rule as to costs in equity, to which reference has been made, is applicable here, we perceive no reason why in justice to both parties, the costs should not be taxed against the defendant town, as, indeed, appears to *370
have been the general practice in proceedings of this nature.Town of Searsburg v. Town of Woodford, supra, page 375 of 76 Vt., 57 A. 961; Town of Readsboro v. Town of Woodford,
Judgment that the report of the commissioners is accepted; thatthe charter line therein established as the division line betweenthe towns is, and shall be, the division line between them; andthat the petitioner recover its costs. Let the expense of markingthe division line be divided equally between the parties.