By the Court,
Sutherland, J.The case of Otis v. Hall, 3 Johns. R. 450, is an express adjudication upon the precise point presented in this case. The action, and the ground of defence, and all the circumstances in that case, were precisely the same as in this ; and it was there held that the setting up of a parol license from the plaintiff to overflow his land by means of a mill dam erected upon the defendant’s own land, did not bring the freehold or title to land in question, so as to entitle the plaintiff to costs under the statute, upon a recovery of less than $50. The court say there was no claim of a right of entry into the plaintiff’s land, nor of any direct use or enjoyment of it. The defendant merely sets up a right to use his own land, in the manner he has done by erecting the dam, and that any consequential injury to the plaintiff was waived *565by his express license for that purpose, and that it was a mere damnum absque injuria, for which the plaintiff has no right of action. The statute applies only to cases where a claim or question as to the direct use by entry on another’s land comes in controversy; not to cases of mere consequential injury, resulting from the particular manner in which the defendant may use or occupy his own land.
Although the language of the revised statutes, 2 R. S. 614, § 3, sub. 3, is somewhat different from the old act, it is believed that the legislature intended to do no more than adopt the construction which had previously been put upon the old act. It had been decided in Heaton v. Ferris, 1 Johns. R. 146, that a claim to a right of way, either by grant or prescription, brought the title to land in question ; and in Eustace v. Tuthill, 2 Johns. R. 185, and Tunnicliff v. Lawyer, 3 Cowen, 382, that a claim of right by prescription to overflow the plaintiff’s land, or by an uninterrupted enjoyment of it for twenty years, also brought the title to land in question, within the meaning of the statute. It was the principle of these decisions, I apprehend, which the legislature intended to adopt in the revised statutes. I am persuaded they had no intention to make so important an alteration in the law as is contended for by the plaintiff in this case. This opinion is strengthened by the notes of the revisors, in which the above decisions are referred to as the foundation of the change of phraseology which they recommended. The motion of the defendants for costs must therefore be granted.