Eustace v. Tuthill — 2 Johns. 185

Majority

p. 184

Eustace against Tuthill.

Headnote

Where to a special action on the case, for overflow-tiff’s land^thi' defendant general issue andajustifiright of pre

This was a special action on the case brought by the plaintiff', to recover damages of the defendant for overflowing the lands of the plaintiff, in consequence of the defendant’s erecting a dam across the Oilerlcill, in the town of WallMU, in Oranxe county. The defendant pleaded the general issue, but'by an agreement with the

p. 185

scription, and the jury found a verdict for 15 dollars damages, it was held that the plaintiff was entitled to full costs.

plaintiff’s attorney, he gave in evidence a right by prescription to overflow the lands mentioned in the plaintiff’s declaration, at his pleasure.’ The jury found a verdict for the plaintiff, for fifteen dollars damages, and six cents costs*

It was submitted to the court, whether the title to land carne in question, so as to entitle the plain tiff to full costs under the statute.

In the case of Heaton v. Ferris,^[1] which was an action of trespass, the defendant pleaded the general issue, and a special justification of a right of way by prescription over the locus in quo, and it was decided that the plaintiff was entitled to full costs. The present case comes within the principle there decided. The plaintiff must have his full costs.

* Vol. 1. 146. Feb. 1806.