Opinion
File No. 64359
In a proceeding instituted by selectmen under section 1441 of the General Statutes, Revision of 1930, for the ascertainment of benefits and damages to property owners affected by the laying out of a highway, costs may be taxed in favor of an applicant for a jury to re-estimate damages or benefits only when the jury increases the damages allowed or diminishes the assessment of benefits to such applicant (Gen. Stat. [1930] §§ 1451, 1453). Accordingly, parties to such a proceeding were not entitled to costs as a matter of law, where, before a jury ordered was summoned, the parties embarked on a procedure of their own, in that they stipulated that the matter should be referred to a state referee "who shall perform and exercise the powers provided by law for the jury hereinbefore ordered." However, as part of the stipulation of reference the parties agreed that costs should be taxed in the same manner as if the jury had been summoned and made its report under the applicable statute. The referee increased the damages to the property owner. Costs were allowed as set forth.
MEMORANDUM FILED AUGUST 13, 1941.
Hugh M. Alcorn, of Hartford, for the Plaintiffs.
Parmelee Carlson, of Hartford, for the Defendant, Federal Land Bank of Springfield.
D. M. Fiorita, of Hartford, for the Defendant, J. C. King.
Jacob Bresnerkoff, of Hartford, for the Defendant, Joseph Cezseus.
Memorandum of decision on motion for taxation of costs.
The motion is filed as the result of a proceeding instituted by the plaintiffs as selectmen of the Town of Windsor under the authority of section 1441 of the General Statutes, Revision of 1930, for the ascertainment of benefits and damages to the several defendants as property owners whose land was affected as the result of a layout of a portion of Matianuck Avenue in the Town of Windsor.
In compliance with the provisions of the statute referred to, a committee of three persons was named by a judge of this court on August 8, 1940, to make an estimate of benefits and damages and report the same to this court. Thereafter, the committee as constituted by some substitutions in its membership due to resignations in the interim, filed its report on January 4, 1941, to which defendant Cezseus alone of all the defendants filed a remonstrance which the court overruled, and ordered that a jury of six be summoned as required by statute under such circumstances to hear the evidence concerning the damages sustained and benefits arising to the defendant Cezseus' land and to make its report to the court.
Up to this point, the proceedings follow the outline provided by the applicable statutes, viz., sections 1441, 1450, 1451, 1452, 1453 and 1454 of the General Statutes, Revision of 1930. "Costs are the creature of statute ( Lew vs. Bray, 81 Conn. 213, 217, 70 A. 628), and unless the statute clearly provides for them, courts cannot tax them." Waterbury vs. Macken, 100 Conn. 407, 413. The only mention of costs in the statutes mentioned occurs in section 1453, supra, and this applies only to the contingency that the jury referred to increase or fail to, the damages or benefits assessed.
It appears here that the proceedings never reached that point, but that, on the contrary, the parties embarked on a procedure of their own before the jury was summoned, in that they stipulated that the matter should be referred to a state referee "who shall perform and exercise the powers provided by law for the jury hereinbefore ordered...." It follows that neither party is entitled to costs from the other as a matter of law because the eventuality which alone could justify an award of them under the statute did not materialize.