Majority
p. 539Radley vs. Brice.
Headnote
In trespass quart clausum freglt, and for taking timber where the defendant instead of pleading a justification gives notice thereof, the plaintiff is entitled to full costs, although the verdict be less than @50,This was an action of trespass quart clausum fregit, and for cutting and carrying away timber. The defendant pleaded the general issue, and gave notice of justification generally, to enter upon the premises, and to take timber, &c. On the trial of the cause, it was shewn that the defendant had entered upon premises possessed by the plaintiff, part of which were enclosed, and part unenclosed, and the damage of the plaintiff, in the taking of timber by the defendant, was proved to exceed in value $100. The defendant produced in evidence a lease from Stephen Van Rensselaer, the original proprietor of the premises, giving a right of common of estovers to the tenant, under whom the defendant justified. The jury found a verdict for the plaintiff with only $10 damages, on which the plaintiff entered judgment, and taxed full costs. The defendant moved to set aside the judgment, and that he be allowed to tax costs against the plaintiff.
H. G, Wheaton, for defendant.
By the Court,
A plaintiff is entitled to recover costs “ in all actions in which the title to lands or tenements, or a right of way, or a right by proscription or otherwise, to any easement in any lands, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause.” 2 R. S. 613, § 3. A notice of justification subjoined to the general issue in an action of trespass is equivalent to a special plea, and as effectually puts the title in is
p. 540
sue; the rights of the plaintiff in this case, therefore, are the game ag jf the matter set forth in the notice had been spread out in a plea. The motion is denied.