Long v. Ober

The opinion of the court was delivered by Ross, J. I. The first question raised by the exceptions is, whether the County Court erred in restricting, under s. 22, c. 125, Gen. Sts., the plaintiff’s costs to the amount of damages recovered. By the provisions of that section, “ in all actions of trespass upon the freehold, other than those in which the right of title or possession of real estate shall come in question,” the costs are restricted to the amount of the damages recovered, unless the damages exceed seven dollars. Hence, if “ the right of title or 76 possession ” of any of the demanded premises for which recovery was had came in question, the County Court was not authorized to restrict the plaintiff’s costs to the amount of the damages recovered by him. By the exceptions it appears that the right of title and possession to the strip of land between the lino of marked trees on which the defendant had built a slash fence, and the line run by the surveyor Waterman ten or twelve feet further south than the slash fence, came in question on the trial, and was settled in favor of the plaintiff. This brings the case within the class in which, by the terms of the statute, the plaintiff is entitled to recover full costs regardless of the amount of damages recovered by him, and within the construction placed upon this section of the statute by this court in Powers v. Leach, 22 Vt. 226, and in Brainerd v. Carey, 87 Vt. 479. The County Court therefore erred in restricting the costs recoverable by the plaintiff to the amount of his damages. II. The defendant filed “ a motion to dismiss for want of jurisdiction, for the reason, that at the time of the commencement of the suit, the damages sustained by the plaintiff were less than twenty dollars.” The ad damnum in the writ is $200. The County Court has found that the plaintiff brought his suit to the County Court in good faith. Regardless of the ad damnum in the writ, and the good faith of the plaintiff in bringing the suit in the County Court, the fact that “ title to land was concerned ” in the trial of the suit excepted it from the jurisdiction of a justice of the peace. Every action of trespass quare clausum fregit does not necessarily put in issue the title of the demanded premises. The plaintiff would be entitled to recover by showing, that as against the defendant, he was entitled to possession of the premises. In the case at bar, however, the plaintiff’s only right to the possession of the strip of land in question resulted from the fact that he, rather than the defendant, had the title to it. Hence, the trial of the issue between the parties “ concerned ” the title to the strip of land in controversy, and so gave the County Court original jurisdiction of the cause of action. The County Court, therefore, correctly overruled the defendant’s motion to dismiss 77 for want of jurisdiction. The result is that the defendant takes nothing by his exception, and that, on the plaintiff’s exception, the judgment of the County Court is reversed, and judgment rendered for the plaintiff to recover his damages and full costs.