The opinion of the court was delivered by
Redfield, J.The only question in this Case is, whether the plaintiffs are entitled to full costs, irrespective of the damages. This is claimed upon the ground, that the “ right of title or possession of the land ” was brought “ in questionand that is the question to be determined. We suppose it may be fairly said, that the right of title, or possession, is “ concerned,” that is, involved, in every case of trespass quare clausum fregit. The action could not properly be denominated trespass upon the freehold, if no realty were “ concerned.” But it is obvious, that the right of title, or possession, is not properly “ in question,” in every case. The case *229might go by default; and then no right whatever would be brought in question; or the case might be disputed, upon the point of the defendant having done any act, which amounted to trespass, — or whether any trespass had been committed, and if so, by whom. If the case turned upon these, or similar inquiries, then the legislature intended, that, to the extent of twenty dollars, they should be tried before justices, the same as other mere personal controversies, where no matter of the realty was concerned. But if the right of title, or the right of possession, of the land was to be brought in question in the trial of the action, it was the plaintiff’s right to bring the action at once to the county court. It is true, the plaintiff could not know certainly, in advance, how this would be; but he could well enough conjecture. If the amount of the injury were insignificant, and it was not done under a claim of right, no suit should be brought. If done under a claim of permanent right, the suit should be brought before the tribunal having the general jurisdiction, in such cases, to determine the right; and if the action were contested upon these grounds, and the plaintiff prevail, he will have full costs. If not contested at all, or merely in regard to the fact of the trespass, as the statute stands, we do not see, but that the plaintiff must take only such costs, as will be equal to his damages.
But in the present case it is very obvious, that, from the'permanent nature of the erections made by the defendant, he did the acts, which proved to have been a trespass upon the plaintiffs’ right of possession, under a claim of right of title. And in the trial of the case the plaintiffs were required to show both title and possession, or did show this; and we think it is not to be presumed, that the defendant did not require them to make out their full case, upon all points — possession, as well as the fact of trespass. And if so, we think their right of possession was as effectually brought “ in question,” as if the defendant had attempted to prove freehold in himself, or a lease from the plaintiffs for life, or years. The only inquiry is, did the defendant bring in question the plaintiffs’ right of possession of the land, that is, the right of possession, at the time the trespass was committed, as against the defendant. If the defendant would avoid effectually the contingency of liability to full costs, in case the plaintiffs do recover, he must make no question in *230regard to the plaintiffs’ right, either of title, or possession. If the plaintiffs are required, in the trial of the action, to adduce proof, either of their title, or possession, it is presumed, they will desire to come so prepared, as to prevent all liability to any contingency of failure, which must defeat their recovery in future actions, and virtually transfer the title, and right of possession, to the defendant. This makes the trial upon these points important, and in many instances expensive; and the statute provides, in terms, and it was the intention of the legislature, we believe, that the plaintiff should recover all reasonable costs, incurred in adducing proof in regard to his title, or right of possession. They have therefore provided, that in all actions of trespass quarc clausum fregit, when the “ right of title, or possession,” is brought, or comes, “ in question,” the plaintiff may recover full costs, if he prevail. This, we think, may be done by putting the plaintiff upon proof of his own title and right of possession, or by attempting to show a counter title, or right of possession in the defendant. The former was certainly done in this case.
How far the attempt to show license under the plaintiffs to do the acts complained of is to be regarded as bringing in question the right of possession, it is perhaps not necessary to determine. I should be inclined, at present, to believe, that it must depend upon the nature of the act complained of, whether an attempt, on trial, to show license from the plaintiffs would fairly be said to bring “ in question ” the plaintiffs’ right of possession. If the act complained of as a trespass were an unequivocal act of possession, then I could hardly conceive, how an attempt to show license from the plaintiffs to do the act could be said not to bring in question the right of possession in the plaintiff at the time. And if the act were merely passing over the land, or doing any other thing, with no claim of right to possession, either for a longer or shorter period, it is not easy, perhaps, to see, how the plaintiffs’ right of possession is brought in question. But I am aware, that there is a view of the case, which makes any act, under claim of right, even by license from the plaintiffs, sufficient to carry full costs.
Judgment affirmed.