Green v. Ealman.

Case agreed from Nash.

A. appeals from the order of the County Court, granting leave to B, to build a mill, &c. The oi’der of the County Court is affirmed; A. is liable for the costs in the Superior Court under the general law regulating appeals ; B. is liable for the costs of the County Court under the act of 1779, ch. 23.

This was a petition for leave to build a mill, filed under the second section of the act of 1779, ch. 23.* Green, the petitioner, owning the land on one side of the run, and Ealman owning the land on the other side. Eal-man having been summoned to answer the allegations of the petition, appeared, and prayed that leave to build the mill might be granted to him, and not to the petitioner Green. The County Court decreed that leave should be granted to Ealman to build the mill. From this decree of the Connty Court, the petitioner Green appealed to the Superior Court, and gave bond and security according to the act of Assembly regulating appeals. The Superior Court affirmed the decree of the *13County Court; and it was submitted to the Supreme Court to determine which of the said parties should pay the costs, and in what manner, and to what extent, if the costs be divisible.

*

« Sec. II. Be it further enacted, that any person willing to build «such mill, who hath land only on one side of a run, shall exhibit his “ petition to the County Court, and therein shew who is the proprie"tor on the opposite side of the run; whereupon a summons shall is«sue to such proprietor to appear at the next Court, and answer the «allegations of such petition; and the Court also, at the same time, «shall order four honest freeholders to lay off, view, and value, on « oath, an acre of the land of such proprietor, and also an aci’e of land «of the petitioner opposite thereto, and to report their opinion and «proceedings thereon to the next Court, and thereupon the Court « shall order the said report to be recorded; and if it take not away «houses, orchards, gardens, or other immediate conveniences, said “ Court shall and may, and are hereby empowered and authorised, to « grant leave to the petitioner, or such proprietor, to erect such mill, “ at the place propo'sed, as in their discretion shall seem reasonable,^ « and to order the costs of such petition to be paid by the person to' « whom such leave shall be granted.” '

Locke, Judge,

delivered the opinion of the Court:

The Legislature evidently intended, tiiat as the party applying for an order to erect a mill, was to have a portion of his adversary’s property condemned, to answer a public purpose as well as a private benefit to the party intending to erect such mill, this condensation and appropriation should be at the costs of the party making the application. Yet it would appear that this provision only extended to the costs of the County Court. If, therefore, a party against whom the County Court make the order, should appeal from tiiat order to the Superior Court, he takes the appeal subject to the general law of the country regulating costs upon appeals. He will therefore be liable to, or exempt from the payment of those costs, according to the event of the suit; if it terminate in his favour, he will he exempted from, costs; if otherwise, he must pay the costs. In the present case, the same party prevailed in both Courts ; and therefore the party appealing is bound to pay the costs of the Superior Court, under the general law; and the party in whose favour the order was granted, is equally bound to pay the costs in the County Court, under the special act of Assembly, provided for that particular case.