126 Mass. 287 | Mass. | 1879
The petitioners in these cases, having been injured in their property by the action of the respondent in taking land, under the St. of 1875, e. 217, applied to the county commissioners to assess their damages; and, being dissatisfied with the amount awarded, filed their petitions in the Superior Court, under the St. of 1873, c. 261, for assessment of their damages by a jury. In each case a verdict was returned for the petitioners for a smaller sum than the county commissioners awarded. The respondent moved for judgment for costs. The court overruled the motion, and the respondent appealed.
It is provided by the St. of 1875, e. 217, § 2, that any person injured in his property under that statute, and failing to agree with the city of Taunton as to the amount of damages, may have the same assessed and determined in the same manner as is provided where land is taken for highways.'
It was early held that the statute provision giving costs to the party prevailing in civil actions does not apply to proceedings of this kind. Commonwealth v. Carpenter, 3 Mass. 268.
Beside the sections above referred to, there is no provision in the statute which has ever been regarded as suggesting that the party taking lands for a highway could imder any circumstances
Even if, as the respondent contends, the petitioner to the Superior Court for a jury is under obligation to give a recognizance for costs, such recognizance being for the benefit of the county only, the omission to give it has no bearing on the question of costs between the parties. We think, moreover, that the statute provision for the recognizance applies only when a sheriff’s jury is asked for, and has no reference to the application for a jury in the Superior Court. The St. of 1873, c. 261, provides that application for a jury may be made by petition to the Superior Court, in all cases when a sheriff’s jury may be had for any purpose, and thereupon, after such notice as the court may order to the adverse party, a trial may be had at the bar of said court in the same manner other civil cases are there tried by jury. The statute says nothing about a recognizance, and it would be an anomaly in that court if a party were required to recognize to the county for costs before he could submit his rights to the decision of a jury.
The motion of the respondent for judgment in its favor for costs was properly denied. The judgment appealed from being sustained, justice requires that the costs incurred by the appeal should be taxed against the respondent. Gen. Sts. c. 156, § 26. New Haven Northampton Co. v. Northampton, ubi supra.
Judgment affirmed, with sosis