
    The Marshall Fishing Company vs. The Hadley Falls Company.
    Under the statute of 1848, c. 222, incorporating the Hadley Falls company, with authority to construct a dam across the Connecticut river, paying such damages to the owners of fishing rights, as might be awarded by the county commissioners, and providing that the proceedings before the commissioners should be subject to an appeal to a jury, in the same manner, and with like proceedings, as in case of assessments of damages by county commissioners for land taken for highways; the Hadley Falls company have the right to appeal, as well as the other party though county commissioners, in analogous cases of damages for land taken for a highway, might have no right of appeal.
    In the case of an appeal by the Hadley Falls company from an assessment of damages by the county commissioners to a jury, under the fifth section of their act of incorporation, if the damages are reduced by the jury, the company are entitled to costs as the prevailing party.
    
      The expenses attending the assessment by county commissioners, of damages occasioned to fishing rights, to be borne by the Hadley Falls company, according to their act of incorporation, do not include counsel fees paid by the party injured.
    This was an appeal from a judgment of the court of common pleas, accepting the verdict of a sheriff’s jury, summoned to revise an award of the county commissioners, as to the damages occasioned by the respondents to the fishing rights of the petitioners, by the construction of a dam across the Connecticut river.
    The Hadley Falls company was incorporated by the act of 1848, c. 222, for manufacturing purposes, and with authority to construct and maintain a dam across the Connecticut river.
    The fourth section of the act provided, that the corporation should pay such damages to the owners of the fishing rights, existing above the dam which the company were empowered to construct, as might be awarded by the county commissioners of the counties, in which such rights existed.
    The fifth section was as follows:—“ The Hadley Falls com pony, or any of the owners of said fishing rights, may at any time apply to said county commissioners, to proceed to ascertain and determine the damages to said fishing rights; and on such application, the said county commissioners shall appoint a time and place of meeting, to hear the parties interested, by advertising the same in one or more newspapers published in the counties of Hampshire and Franklin, four weeks, at least, previously to the day fixed for said meeting; and the said commissioners shall determine and award the damages to the said fishing rights, within sixty days from the date of such application to them for that purpose; subject however to an appeal to a jury from such assessments, in the same manner, and with like proceedings, as in cases of assessments of damages by county commissioners for land taken for highways ; and all expenses accruing under such application to, and determination of, the county commissioners, shall be borne by the Hadley Falls company.”
    Under these provisions, the petitioners instituted proceedings before the county commissioners of Hampshire, for the purpose of ascertaining and determining the damages occasioned to their fishing rights by the construction of the respondents’ dam. The respondents, being dissatisfied with the award, applied to the commissioners for a jury to revise the same, who were summoned and impanelled accordingly, and returned a verdict reducing the sum awarded by the commissioners.
    Before the jury were impanelled, the petitioners objected, that by the fifth section of the act incorporating the Hadley Falls company, they were not authorized to apply for a jury, or the commissioners to issue a warrant therefor. This objection was overruled by the sheriff, and the petitioners excepted.
    
      C. P. Huntington, for the petitioners.
    
      G. T. Davis, for the respondents,
    to the point that counsel-fees should be included in “ expenses,” cited Gay v. Patterson, 3 Cow. 29; Swan v. Picquet, 4 Pick. 465; Guild v. Guild, 2 Met. 229, 233.
   Dewey, J.

It is contended, on behalf of the Marshall Fishing company, that the right of appeal from the commissioners to a jury is not given to the Hadley Falls company, and that they are bound to pay such sum as may be assessed by the county commissioners.

This is supposed to result from the fourth section of the act incorporating the respondents, and the omission therein of the provision in the railroad acts, expressly giving such right of appeal to railroad corporations. But the right to a jury must here depend upon the provisions of the Rev. Sts. c. 24, regulating the assessment of damages for land taken for highways; by the thirteenth section of which chapter, any party aggrieved,” is entitled to a jury.

Then it is said, that, practically, there is no appeal to be taken by the county, upon an over-assessment of land damages. True, this is so; but not by reason of any restriction in the statute itself, but because from the very nature of the case, the county can not be aggrieved by the act of their own agent in assessing the damages. The assessment is virtually their own, and for the commissioners to appeal from their own decision would be absurd. From this cause, therefore, no such appeal would ever be even claimed. But this does not indicate, that if a case should occur, where others were interested than the county, whose agents the commissioners are, an appeal would not lie. If land damages were to be paid by the towns in which the land was situate, as they formerly were, the statute would well authorize such towns to demand an assessment by a jury. The court are of opinion, that a reasonable construction of the act incorporating the Hadley Falls company gives that company, as well as the petitioners, (the right to a jury to revise the damages awarded by the county commissioners.

The case was properly brought before the jury, therefore, and the only remaining question is that of the right to costs. The damages were reduced, but no provision exists applicable to such cases in reference to these damages; and of course no costs can be taxed in favor of the petitioners, and the respondents will be entitled to the taxable costs as the prevailing party.

The petitioners, under the provisions of this act, “ that all expenses accruing under such application to and determination of the county commissioners shall be borne by the Hadley Falls company,” now ask to tax all their expenditures for counsel-fees in the prosecution of their claims, although we should allow a liberal taxation for all expenditures for plans, surveys, &c. We cannot suppose that the legislature intended to embrace counsel-fees in the above provision, and the claim must therefore be disallowed.  