Harvard Branch Railroad v. Rand , 62 Mass. 218 ( 1851 )

Shaw, C. J.

Questions of costs, though apparently incidental and secondary to those touching the merits of cases are often of considerable intrinsic importance, and quite as earnestly contested.

The precise facts here are, that upon the application of the railroad company to the county commissioners, (which they as well as the owner were authorized to make, by Rev. Sts. c. 39, § 56,) the respondent’s damages were assessed for the taking of his land by the petitioners for their road. The company being dissatisfied with the estimate, under § 57 of the same statute, applied for a jury, which was ordered, and which assessed the respondent’s damages at a sum less than that awarded by the commissioners. The verdict being accepted by the court of common pleas after a hearing, the petitioners, the railroad company, moved for costs, which the court of common pleas disallowed, and from this decision they appealed to this court.

We think this question is settled by the statute, and the construction put upon it by this court, in the case of Commonwealth v. Boston & Maine Railroad, 3 Cush. 56. The provision of the Rev. Sts. c. 39, § 62, is, that after the award of the commissioners, if the railroad company shall apply for a jury, and fail to reduce the damages, they shall pay all the costs of the jury, and other expenses accruing after the award of the commissioners. This affords a plain implication, that if they reduce the damages, they shall not be held to pay costs. But as there is no provision that in such case they shall recover costs, the result is, that each party pays his own costs, without any right to recover them of the other. The court are therefore of opinion, that the judgment of the court of common pleas, disallowing the claim of the petitioner for the costs of the jury trial, was correct, and on this appeal ought to be affirmed. Costs of the appeal are to be allowed to the appellee, under the general rule, as the prevailing party on this appeal.

M. G. Cobb, for the petitioners.

E. Buttrick, for the respondent.