The important question which this appeal raises, is whether the Superior Court, after the committee had reported its assessment of $1,000 damages in favor of the defendant company, was empowered by statute to order a reassessment of benefits and damages by a jury, upon application of the plaintiffs.
The statutory provisions relevant to this question §§ 2051, 2054, 2055, 2056, 2066, 2067, 2070) are printed in the footnote.* *Page 3
It is evidently immaterial to the question before us whether the damages and benefits sought to be assessed *Page 4 in this proceeding are those described in § 2051 or 2054, since it is expressly provided that in either case a jury may be ordered to reassess them in the manner provided by § 2067. The decisive question is whether § 2067 provides that the court may order a jury to make such reassessment upon the application of the town by its selectmen.
We are of the opinion that it does not. First, § 2067 limits the powers of the jury "to granting relief to the person or persons making said application." The selectmen as individuals are evidently not referred to by the words "persons or persons." As such they have no personal interest in the proceeding. They are merely the representatives of the town. The real parties are the persons who claim to have sustained special damages beyond the special benefits received, and the town which is to pay the damages and to whom the benefits are to be paid. Baker v. Windham, 25 Conn. 597,602.
Second, § 2070, regarding the payment of costs on the report of the jury, very clearly indicates that the property owners, only, can apply for a reassessment by a jury. The costs are, by the provisions of this section, to be paid either by the applicant for the jury, or the town. The only applicant for a reassessment by a jury referred to is the one to whom the committee has assessed benefits or damages. Damages and benefits are not assessed to the town, but only to the property owners.
Again, this section provides that if the report of the jury shall not increase the damages or diminish the benefits, the applicant shall pay the costs. This language clearly indicates that the applicant for reassessment by jury is one who seeks to have the damages increased or the benefits diminished, or both. Such would be the purpose of an application for reassessment by the property *Page 5 owner, but not of the town, which, if it could ask for a reassessment by a jury, would seek just the opposite, namely, to have the damages diminished or the benefits increased, or both. If the town or the selectmen could properly be applicants for a reassessment by jury, the provision of this section, that as such applicants they would be required to pay costs because they failed to increase the damages or diminish the benefits allowed by the committee, would be a very remarkable one.
But practically the same question that is raised in this case was passed upon in the case of Betts v. Hartford,25 Conn. 180, 187, decided in 1856. The law then in force in relation to the assessment of damages from the layout or alteration of highways, and to a reassessment by jury, was similar to the provisions of our present statutes, excepting that the assessment was first made by the county commissioners instead of by a committee. In the case cited, the claim having been made that the defendants were under the statute entitled to have the damages which had been assessed by the county commissioners, and which were claimed to be excessive, reassessed by a jury, this court said: "Persons whose lands are taken, alone have this right and privilege, but not the public, for it is the public by its own agents, who have taken the land from others at its just value as fixed by themselves, the legally constituted agents of the government; and certainly the public cannot complain of the judgment of their own agents. This we are satisfied is the theory; and we see nothing in the statute which leads us to form a contrary opinion."
In the case before us the Superior Court should have denied the application of the selectmen for a reassessment by a jury.
There is error, and the judgment of the Superior