In actions of trespass qu. cl. the title to the real estate may be called in question by the pleadings or by the evidence upon the trial. Ward v. Bartlett, 1 N.H. 14; Bachelder v. Green, 38 N.H. 265; Pevare v. Towne,57 N.H. 220. The only question in this case is, whether the defendant is estopped to deny that he disputed the plaintiff's title. The case finds that "before, after, and at the time of the trespass the defendant claimed title to the locus in quo, and so informed the plaintiff, who, relying upon the statements of the defendant, and in good faith believing that the title way in question, brought his action in the supreme court." This makes a case of equitable estoppel. The defendant by claiming title caused the plaintiff to believe the title was in dispute, and induced him, acting on that belief, to bring his action in the supreme court instead of in a justice's court. The defendant so conducted that the plaintiff might reasonably take his representation to be true, and might reasonably believe it was intended to be acted upon. He is equally precluded from contesting the truth of his representation, whether he did or did not know it to be untrue, or whether he did or did not mean it should be acted upon as true. The plaintiff having been induced by the defendant's claim of title to bring his action in a court which has jurisdiction of disputed titles, it would be inequitable to permit the defendant now to claim that his costs should be limited because after the action was commenced he did not choose to make any contest in regard to the title. Simons v. Steele, 36 N.H. 73; Horn v. Cole, 51 N.H. 287; Stevens v. Dennett, 51 N.H. 324; Wells v. Pierce, 27 N.H. 503; Davis v. Handy, 37 N.H. 65; Drew v. Kimball,43 N.H. 282, 285; Thompson v. Sanborn, 11 N.H. 201; McMahon v. Portsmouth Ins. Co., 22 N.H. 15; Odlin v. Gove, 41 N.H. 465, 473; Corbett v. Norcross,35 N.H. 99, 115; Richardson v. Chickering, 41 N.H. 380; 1 Story Eq. Jur., s. 384.
The action having been properly brought in the supreme court, the costs should not be limited.
Case discharged.
ALLEN and CARPENTER, JJ., did not sit: the others concurred.