The opinion of the court was delivered by
Barrett, J.This was a petition for the establishment of a ¡depot, some two miles south of Bradford village, entered March *716term, 1874, and commissioners were appointed at the same term, to hear and report to the court in the premises. Their report was returned and filed at this term of the court, adverse to the prayer of the petition, and it was accepted, and judgment was rendered thereon, denying said prayer. A question was'made to the court whether costs should be allowed to the defendant for witnesses on the hearing before the commis ioners. The court held it proper that such costs should be allowed, — distinguishing it from cases for the laying out of highways. In those cases, both sides assume to represent the public interest in respect to a measure to be carried into effect at the public expense. In this case, individual citizens move against a private party, to compel it, by judicial order, to do, at its own expense, a service for both public and private benefit. In this feature it is, in substance and effect, litigation inter partes, involving the ordinary incidents of such litigation by way of claim and defence. The commissioners are in the character of referees, and are appointed by the court, the better to do a service which the court itself might do by having witnesses called to testify in open court upon a formal trial. The proceeding before commissioners involves the same reasons for allowing costs for witnesses, as exist in ordinary cases of reference at law, and of proceedings before masters in chancery.
The costs having been taxed by the clerk, objection and exception was taken to the taxation for several witnesses who were summoned and attended, but were not called upon to testify.
An appeal was taken, and, by consent, was heard by Barrett, J., who held that the subject was to be governed by the same rules, and to be disposed of on the same considerations, as in cases tided in court, and that co-ts would not be allowed for such witnesses, unless it should be shown affirmatively that they were summoned in good faith, and for such cause and occasion as would justify their attendance at the expense of the other party. In this case, the costs for these witnesses wore disallowed, for failure to show such cause and occasion. There was no taxation or allowance of costs by the commissioners, nor did the report contain anything bearing on the subject. ... . .
Clarke, for the petitioners. Farnham, for the defendant.The judge decided that, in such cases, costs should be taxed by the commissioners in the same manner as by auditors and referees ; and, if question was to be made to the court as to such taxation, that the commissioners should report the facts involved in such question, and material to the proper decision of it.