It is difficult, from the bill of exceptions and the record, fully to understand this case. If the building stood on the track of the railroad, and was taken away to enable the railroad company to make their road, and by their authority, it is difficult to perceive why the plaintiffs should have had a verdict for any thing, unless indeed the defendant did unnecessary damage, as by pulling down the building, when it could easily have been removed to the leased premises and there have don, less injury to the reversion, or unnecessarily destroyed the materials of the building.
But looking to the declaration and answer, it appears that it is an action alleging damage to real estate, to wit, a building, parcel of a real estate, consisting of lands and buildings, of which the plaintiffs hold a title as reversioners, and averring that the defendant was tenant for years. Under the old mode of declaring, it would have been an action on the case for damage to the reversion. Starr v. Jackson, 11 Mass. 519. The description carefully excludes the idea that it was a shed temporarily erected, which under some circumstances might be deemed personalty. The averment of this special title was fundamental. It was a fact, without proof of which the plaintiffs could not recover.
The defendant, in his answer, admits that he pulled down and removed the wooden building, “ but whether the same belonged to the plaintiffs, he has no knowledge, and can neither admit nor deny, but leaves the plaintiffs to prove.” He does not in terms deny, but he expressly refuses to admit, and leaves the plaintiffs to prove, that the building “ belonged to the plaintiffs,” that is to say, that they had a title to it, or an estate in reversion therein. The fact is essential; the burden of proof is on the plaintiffs ; the defendant refuses to admit it; he therefore requires the plaintiffs to prove it, and thereby puts it in issue. The question for us, is whether the plaintiffs are entitled to full costs, or to quarter costs.
Some of the excepted cases in which full costs are allowed, in the Rev. Sts. c. 121, § 3, are “ actions of trespass on real estate, and all others in which the title to real estate may be concerned.” According to the new practice, we have no action *339of trespass, in terms; but the action of tort embraces all actions of trespass. St. 1852, c. 312, § 1. We are then to consider, that the action of trespass on the case, for damage to a revérsion, is as much trespass for damage to real estate, as trespass quare clausum ; indeed, rather more so, because the former necessarily concerns title, whereas the latter may be for injury to the possession only. We are therefore inclined to the opinion, that this case comes under the exception, as an action of trespass to real estate ; but if not so, we are of opinion that it does come under the other exception, as an action in which the title to real estate is concerned ; and in either case the plaintiffs, though they have recovered a sum not exceeding twenty dollars, are entitled to full costs.
Exceptions overruled.