Eastman, J.
The statute provides that costs shall follow the event of every action or petition, unless otherwise directed by law or by the court. Rev. Stat., chap. 191, § 1. There is no provision of law prohibiting the taxation of costs, in proceedings relative to highways, and the court have not, as yet, discovered any good reason why this class of litigation should be distinguished, in this respect, from ordinary suits. Upon petitions for highways and proceedings for their discontinuance, the party to the record who succeeds is entitled to costs. The practice since the passage of the Revised Statutes has, as we believe, been uniform in this respect.
This petitioner has failed in his application, and costs must be taxed against him, if there, is any party to the record in whose favor judgment for costs can properly be rendered. The entry of the petition was against the town of Northfield. The town did not see fit to oppose the petition, and, according to the usual practice, it was referred to the road commissioners. The report being in favor of laying out the road, costs would have been taxed against the town if the report had been accepted. But Nesmith & Pike appearing generally upon the docket, yet, as appears by the case, in behalf of Nancy Clough, a land owner, and not for the town, succeeded in having the report rejected, and now claim costs as the prevailing party.
Land owners are not, according to the general acceptation of the term, parties to the record. Their names do not in any way become connected with the proceedings, until after the petition is referred to the road commissioners. They are then notified to appear before the commissioners, if it is supposed that the contemplated route will pass over their land; and if the commissioners shall lay the road over their land, their names appear in the report. Until the return of the report they do not appear upon any of the papers used in court. After the report is returned the practice has been to permit them to oppose its acceptance ; but costs are not taxed against them, unless their names have been entered upon the docket as parties antagonistic to the petitioners. Towns not unfrequently oppose the acceptance of reports, relying upon exceptions growing out of irregular and illegal proceedings towards the land owners; and executions go against the towns if they fail in their opposition. But executions cannot go against the land owners, unless their names are upon the docket, so as to become formal parties to the record.
By the same rule, costs cannot be taxed in favor of land owneps who may oppose and succeed, unless they place their names upon the docket and become regular parties to the controversy. They cannot have the privilege of taking costs without having placed themselves in a position to be liable for their payment in case of failure to succeed. The rule must be held to operate both ways.
Northfield, the defendant .upon the record, claims no costs; and Nesmith and Pike, having no authority to appear for the town, and having obtained no leave of the court to defend for Nancy Clough, in the name of the town, and no right to appear for themselves, cannot enter up judgment in the name of North-field, or in their own names. Nancy Clough’s name is not upon the docket, and, upon the principles above laid down, no judgment can be made up in her favor, as the record now stands.
It is within the discretion of the common pleas to permit her name to be now entered upon the docket, and to have judgment rendered in her favor for costs, if in their opinion, under all the circumstances, justice requires it. As the record now stands, no judgment for costs can be rendered against the petitioner.
Motion denied.