The argument of plaintiff’s counsel, so far as it aims to show that, under the agreement between the plaintiff and John Brandow, the plaintiff had title to the 100 acre lot, may be dismissed with the remark that this court on a former occasion decided the contrary ■ way, and the question is res adjudicata. Though not present when the decision was made, I am informed by my brethren they were clear and unanimous on this point, and we must regard it as disposed of, so far as this court is concerned.
This conclusion was arrived at on the face of the instruments themselves, and without reference to extrinsic evidence. There was, therefore, no error in excluding evidence offered by the plaintiff to show that the price paid was the full value of the land, bark and timber together, except the hard wood. There was no request on either side to reform the instruments, and the evidence would seem to be admissible • (if at all) only on such an issue.
An exception is also taken by the plaintiff to the admission of evidence offered by the defendant, that the latter claimed his north line to be a straight line, and claimed the east and ' west lots as his; that he had got sixty acres and the bluff thrown in, and these together run up to this straight line on .the north side; that he claimed a certain corner, where he directed the fence to be fixed, as his comer, and spoke of a rock on or near the end of Pratt’s wall as on the line; and *96claimed a certain pile of stones and a big rock as his corner; and claimed to own a certain lot, and to own up to the north fence.
I am inclined to think that, in connection with the facts and circumstances proved in the case, that all this evidence was admissible, either as showing a claim of title to land which the defendant or Brandow held adversely to the plaintiff, or as characterizing the nature, manner and extent of the defendant’s possession.
The plaintiff supposes that much of this evidence relates to land of which there is no proof that the defendant or Brandow had actual or partial possession, and especially that there is no evidence that he was in possession of either the east or the west lot; but I think he is mistaken in this particular as a question of fact upon the evidence. The authorities on this subject are familiar. (Jackson agt. Vredenburgh, 1 Johns. 159; Jackson agt. Van Deusen, 5 Id. 144, 157; Jaekson agt. Shearman, 6 Id. 21; Jackson agt. McVey, 15 Id. 234; Burlingame agt. Robbins, 21 Barb. 327; 1 Cow. & Hill's Notes, 217 to 221.)
The court is supposed to have erred in holding that plaintiff had no right to recover for the trespasses committed upon the 100 acre lot. I do not understand the court to have so held, in regard to any wood or timber which by the agreement belonged to the plaintiff. The bass wood trees, I presume, were held by the court (trying the case without a jury)—and there was evidence to justify such holding—to be heard wood. Even if the judge had erred in that particular to the slight extent of the value of a few soft wood trees, the value being ascertained, it would not be ground for a new trial, but for correcting the finding in that particular.-
My examination of the case does not enable me to concur with plaintiff’s counsel in saying that the judge dearly erred in his decision that the title to the triangle was in the defendant, and not in the plaintiff. There is doubtless a conflict of evidence on that point, but the minute and numerous *97references in the defendant’s points bearing on that question, most of which I have examined in connection with those made on the part of the plaintiff, do not allow us, I think, to say that there was legal' error in the conclusion to which the judge arrived on that subject, for which a new trial should be granted. It is not material to consider, in this aspect of the case, whether the defendant, in his plea of title, started his description six chains and eighty-six links further easterly than the true starting point near the Eed Kill bridge. Notwithstanding this alleged error, the defendant presented proof tending to show that his title extended much further easterly than the most easterly point designated in the plea of title, and consequently embraced the whole of the triangle. The judge appears to have come to that conclusion, and we cannot say that it was not warranted by the evidence in any such sense as justifies our interference.
And without going. at large into a detailed statement of the evidence, but which I have examined, as contained in the case and referred to in the points, I am not prepared to say that in reference to the tavern stand premises the judge erred, as it is claimed by the plaintiff that he did, in holding that the defendants had established title to any of the land except the twenty acres on which the tavern stood. There ■ is much evidence tending to show an actual and an adverse possession by Brandow and those under him of the east and west lots, up to .the north line, as claimed by the plaintiff. The south was the well defined line of the turnpike. I have consulted the various references to the testimony contained in the points of the respective counsel, and do not think a new trial ought to be granted on account of the conclusion to which the judge arrived on this point.
But a very serious question remains to be considered, and that is, whether the judge decided right in awarding costs to the defendants respectively in these actions. As this is a part of the judge’s finding, and is incorporated as such in the *98judgment, the objection to it may be availed of, I think, by exception, and considered on this appeal.
I do not agree with plaintiff’s counsel in the conclusion that, if section 304 of the Code covers this case, the plaintiff would nevertheless be entitled to costs, simply for the reason that, in causes of action to which no plea of title was interposed, the plaintiff obtained a verdict for trespasses committed by the defendant.
Subdivision 1 of that section, which provides that costs shall be allowed of course to the plaintiff upon a recovery in an action, when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question on the trial, does not, I think, apply to actions commenced in a justice’s court, but to those originally commenced in this court.
Subdivision 3, I think, is the one which covers this case. It is as follows :
“ 3. In the actions of which, according to section 54, a court of justice of the peace has no jurisdiction.”
Section 54 is as follows:
“But no justice of the peace shall have cognizance of a civil action: 1. In which the people of the state are a party, excepting for penalties not exceeding one hundred dollars; 2. Nor where the title to real property shall come in question, as provided by sections 55 to 62, both inclusive.”
Section 61 regulates the recovery of costs. It is as follows:
“If the judgment in the supreme court be for the plaintiff, he shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial.”
Now, although it is literally true, in this case, that the judgment in the- supreme court is (m part) for the plaintiff, yet I think it is not so within the meaning of this section, which *99meaning is, I think, that the judgment must be for the plaintiff on the issue presented by the plea of title.
Indeed, it seems to me that it is only those issues which, are covered by a plea of title which are intended to go up to the supreme court at all; for by section 62, “If,in an action before a justice, the plaintiff" have several causes of action, to one of which the defense of title to real property shall be interposed, and as to such cause the defendant shall answer and deliver an undertaking as provided in sections 55 and ■56, the justice shall discontinue the proceedings as to that. muse, and the plaintiff" may commence another action therefor in the supreme court. As to the other causes of action, the jtistice may continue his proceedinys.” And if he does not ■ -continue his proceedings as to such causes of action on the motion of the plaintiff, I think the plaintiff loses them. At all events, if they are proceeded with in the supreme court, I think they have no influence on the question of costs.
If, therefore, the question of costs is to be determined by the rule of the Code, I think it was rightly decided in the ■court below. But both of these actions are palpably actions to recover damages for trespasses on lands, and in regard to that class of actions it is claimed that this court has decided, after an examination of the statutes, that the Code does not apply to them, but the provisions of the Revised Statutes are still in force, and that by them the plaintiff recovering any sum in the supreme court is entitled to costs. (See Allen agt. Gifford, 25 How, 289, 301.) This conclusion was reached, it is true, with some hesitation, but not without examination. It will not be profitable, I think, to re-open the question in regard to any matters coming directly within the principle of that decision, but it will be better to leave them to be disposed of by a higher tribunal But passing by the intrinsic difficulties of that question, there seem to me two reasons why we should not apply the principle of that case to the present:
1. The trespasses for which damages are recovered in these *100actions do not' come within the language or description of trespasses defined in the article of the Beviséd Statutes entitled “Of trespasses on lands.” (2 R. S. 338.) That statute gives treble damages against any person who shall cut down or carry off any wood or timber, or girdle or despoil trees on the land of another, without leave of the owner. The trespasses referred to are wilful trespasses, because in the next section the damages are reduced to single damages, if committed on land which the trespasser had probable cause ■ to believe his own; and they are repeatedly spoken of in the cases as trespasses under the statute. How, although the trespasses complained of in the cases at bar, in addition to injuries, done by cattle, include also acts of cutting- down, carrying away and destroying trees, wood' and timber, and so might perhaps be plausibly claimed to come under the statute, yet the trespasses for which damages are actually awarded by the court are only in the Jacob’s case, as follows: “And that the defendant’s cattle have committed trespasses thereon to the amount of five dollars;” and in the Salisbury case, “ and that the defendant’s cattle have committed trespasses thereon to the amount of six cents.” They do not, therefore, seem to be embraced in that description of trespasses referred to in the statute.
2. Inasmuch as section 61 of the Code has defined the cases in which, upon the interposition of a plea of title, the parties shall respectively be entitled to costs, I think the special provision thus made for that class of cases (in which the present are included) must be deemed to override any general conclusions derived from any consideration of the statute concerning “ trespasses on lands.” This seems also - to accord with the course of decision. Section 61 gives costs to the plaintiff, if he shall recover judgment in the supreme court; that is, as I understand it, judgment in that branch of the action elevated to the supreme court by the plea of title; and gives costs to the defendant, in the event of his success, when the judge shall certify that the title to *101real property came in question on the trial
This certificate having been given, and the defendant having succeeded upon that issue, I think that the judge at the circuit rightfully decided that the defendants were entitled to costs.
The result is that the judgments in these cases must be evffirniecL