The question raised on this motion, is, whether the superior court erred in taxing full costs in favour of the defendant in error, who, as plaintiff below, in an action of trespass quare clausum, recovered against the plaintiff in error something less than thirty-five dollars damages.
The plea to the action of trespass was, a general denial of the matters contained in the declaration, accompanied with notice, that the defendant would give in evidence, that the land described in the declaration, was the soil and freehold of the defendant, at the several times when, &c.; and, also, that he would prove, that at the several times when, &c., the defendant had and owned a right of way over and across the said lands, and that the trespasses mentioned in the declaration were committed in the lawful exercise of said right. And from the certificate of the judge, before whom the trial was had, it appears, that the defence really made and relied upon, was, the defendant’s title to the land described in one count, and a right of way in himself over the land described in another count; and that on these grounds he claimed, he was not guilty; and that the title to land, and the right of way set up, were directly in issue, and were decided by the jury.
*80It is obvious, from this statement, that the case falls directly within the words of the exception of the statute, prescribing, that in certain cases, no more costs than damages shall be recovered; and, consequently, the plaintiff was entitled to full costs, unless the form of the proceeding was such as to deprive him of it. Rev. Stat. p. 89. § 152.
The plaintiff in error insists, that unless an issue is directly formed upon the question of title, or right of way, so that the right may be directly decided, that full costs cannot be taxed; and he cites the case of Bishop v. Seeley, 18 Conn. R. 389. as sustaining this position. To a certain extent, he is undoubtedly sustained, by that case. The court held, that, where the record consisted of nothing but a declaration in trespass, with the general issue pleaded to it, nothing was put in issue but the plaintiff’s possession of the land and the defendant’s entry upon it; and although the title might have been incidentally involved in the case, yet, that it was not so involved that it could be decided and the dispute between the parties settled; and on this ground full costs were denied in that case. The decision in that case, went as far, as a fair construction of the statute would justify; perhaps farther than a literal regard to its terms would allow, certainly farther than the courts of New-York and some other states have gone upon similar statutes. Still, we feel no disposition to disregard that decision. As we then said, so we still hold, that it was not the intention of the statute to give full costs in an action of assault and battery merely because the title to land is incidentally involved in it.
But in the case under consideration, the title to land and the right of way were both involved, not incidentally, but directly. These rights were directly within the issue; for the issue, though formed upon the general issue pleaded, yet that is to be taken with the accompanying notice, which is but a part of it; and altogether, they amount to the same thing as if there had been a plea of title, and also of a right of way; and in this aspect of it, the title and right of way claimed, were directly in issue, and were decided by the jury.
That this was so in fact, appears by the certificate of the judge. Whether that certificate is in conformity to our practice, is a matter of no importance: perhaps it was un*81necessary, as the taxing of full costs might well enough be considered as, of itself, equivalent to a certificate that such right was involved in the trial. But it can do no hurt; and inasmuch as, by the pleadings, it appears that the title to land and the right of way set up, might be directly involved; and as it is shown, by the taxation of full costs, that they, or one of them, were so involved; we think there is no error in the record.
The other judges were of the same opinion, except Church, Ch. J,, who gave no opinion, being related to one of the parties.Judgment affirmed.