ELDEN G. BERTHOLD, CALVIN M. WASHBURN vs. THOMAS WEILDING

This matter comes before the Court on petitioners' motion for taxation of costs. Petitioner sets forth six items it claims should be taxed against respondent.

First, petitioner requests $150.90 for the filing fee. The Court determines the petitioner is entitled as of right to $3.00. This result is mandated by the interrelationship of three statutes, G. L. c. 261, §6, c. 185, §21 and c. 261, §23.

G. L. c. 261, §6 states in material part "The prevailing party in a real action...shall recover costs irrespective of the amount of damages recovered." In construing predecessor statutes and those analogous to G. L. c. 261, §6, the Court has indicated that actions in which the title to real estate is brought in question are real actions within the meaning of the statutes. Plympton v. Baker, 10 Pick. 473 (1830) and cases cited therein. See also Sawyer v. Ryan, 13 Met. 144 (1847). This action, a petition for registration, certainly involved the title to real estate and is within the ambit of a real action under c. 261, §6. Costs, within the meaning of c. 261, §6 are composed of definite items prescribed in detail by statute. National Cash Register Co. v. Warner, 335 Mass. 736 , 739 (1957). Here, c. 185, §21 and c. 261, §23 prescribe the costs to be allowed.

G. L. c. 185, §21 provides:

"Costs shall be taxed and the collection enforced as in the superior court unless a different provision is made."

and G. L. c. 261, §23 specifies some of those items of cost which "shall be allowed" in the superior court. Listed first is $3.00 for the entry fee. The entry fee in the Land Court is $11.00, not $3.00, G. L. c. 262, §39, but since the costs are to be the same as allowed in the superior court only $3.00 is awarded. The filing fee in the Land Court for a registration petition is $150.00, plus one tenth of one percent of the assessed value of the parcel for payment to the assurance fund, c. 185, §99. The $150.00 charge is for various items including the filing fee of $11.00. A registration proceeding differs from the ordinary civil action. Generally in the latter, a plaintiff seeks redress for a wrong done by a defendant. If the plaintiff prevails, it may be equitable to tax the defendant for costs in partial compensation to the plaintiff for the expenses he has incurred as a result of the defendant’s acts or omissions. In a registration proceeding the petitioner is essentially seeking a service from the Land Court. The petitioner must pay his filing fee along with certain other expenses regardless whether or not the petition is contested. Thus, the $150.90 incurred by the petitioner here is in no sense occassioned by the respondent's activities.

Secondly, the petitioner seeks to recover $20.00 for the publication fee. No statutory authority for the allowance of this fee has been cited and the Court denies it. Like the filing fee, publication costs are incurred whether or not the petition is contested.

Thirdly, the petitioner wants to recover $5.88 for recording the notice of filing petition required by c. 185, §27. The Court denies this for the same reasons as the publication fee.

Fourth, the petitioner seeks to tax the respondent for witnesses' fees under c. 262, §29. No showing that the attendance of the two witnesses was not reasonably nor in good faith procured by the petitioner has been made. See Barber v. Parsons, 145 Mass. 203 , 204 (1887). Nor has any question about the accuracy of the mileage or total amount been raised. G. L. c. 262, §29 states that "(e)ach witness shall certify in writing the amount of his travel and attendance." The witnesses have not personally so certified. However, a witness need not sign the certificate with his own hand, it being sufficient that the witness's duly authorized agent sign. Rothschild v. Knight, 176 Mass. 48 , 56 (1900).

As the defendant has not contended that the terms of c. 262, §29 were not complied with, the Court will deem the petitioner's attorney to be the witnesses' agent for the limited purpose of submitting and certifying to the bill for travel and attendance and hence the Court allows the petitioner's motion with respect to witness fees and attendance.

Fifth, the petitioner seeks reimbursement for $13.50 in accordance with G. L. c. 261, §25A for the expense of obtaining copies of documents, which were admitted into evidence as exhibits 1, 4, 5, 6, 7, 8, 9, 10, 11, from the Bristol County North District Registry of Deeds. G. L. c. 261, §25A provides in material part:

"Unless the Court shall otherwise determine, the prevailing party Shall be allowed a sum not exceeding one hundred dollars for expenses actually incurred for plans, drawings, photographs and certified copies of public and court records, necessary and used at the trial."

The above numbered exhibits, with the exception of exhibit 6, are all certified copies of deeds in the petitioner's chain of title. Exhibit 6 is a certified copy of a recorded affidavit of low value, relevant to petitioner's chain of title. Thus, the exhibits are within the scope of c. 261, §25A as "certified copies of public...records." All of the documents comprising exhibits 1 and 4-11 were abstracted in petitioner's abstract of title which was not introduced as an exhibit. [Note 1]

In view of the cryptic nature of the abstract and some errors in transcription contained therein, the exhibits were helpful in proving the petitioner's chain of title though perhaps not strictly necessary. It is incumbent upon a petitioner in a registration proceeding to prove he has good title for registration regardless whether or not his petition is contested. As all of the exhibits relate to petitioner's chain of title which petitioner would have had to demonstrate even had respondent not opposed petitioner's petition, the Court exercises its discretion to deny the motion in so far as it seeks taxation of the costs for copying these documents.

Sixth, the petitioner argues he is entitled to recover the cost of printing the Appeals Court Brief under Mass. R.A.P. 26(a) and (c). Mass. R.A.P. 26 provides in material part:

"(a) To Whom Allowed. Except as otherwise provided by law, if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered....

...

(c) Costs of Briefs, Appendices, and Copies of Records. The cost of printing or otherwise producing necessary copies of briefs, appendices, or copies of records authorized by Rule 18(f) shall be taxable in the lower court at rates not higher than those generally charged for such work in the Commonwealth. A party who desires such costs to be taxed shall state these in an itemized and verified bill of costs which he shall file with the clerk of the lower court, with proof of service, within fourteen days after the entry of judgment."

The language of Mass. R.A.P. 26(c) is mandatory. The cost of producing the brief "shall be taxable in the lower court...." While Mass. R.A.P. 26(a) may give the appellate court discretion to disallow the taxation of costs incurred by the appeal against the appellant, it gives the trial court no such discretion. G. L. c. 261, §22.

In support of its sixth request, the petitioner submitted a bill marked paid from the printer for $402.09. The respondant does not dispute that this amount was actually paid for the printing of petitioner's seventeen page appellate brief. Nor has respondent argued the printing bill is at a rate "higher than those generally charged for such work in the Commonwealth." Indeed, the respondent admitted he paid more for the printing of his appellate brief, although the Court does not know how many pages it contained. While there was some suggestion that photocopying may be a less expensive means of producing the necessary copies, the Court has no evidence of that fact. Furthermore, the standard of Mass. R.A.P. 26(c) is, not taxation of costs in accordance with the least expensive method available but in accordance with rates not higher than those generally charged for such work. Thus, the Court must tax the $402.09 costs of printing to the respondent.

Thus, in summary the Court's disposition on petitioner's bill of costs is as follows:

Execution is to issue in accordance with this decision.