
    Otis against Hall.
    ALBANY,
    August, 1808.
    In an action on the case for overflowingthe plaintiff’s land by means of a mill-dam on the defendant’s land, the defendant pleaded not guilty, and gave in evidencethathe bad the permission of the plaintiff to erect the dam, and overflow the plaintiff’s land, if neces, sary. The plaintiff proved a revocation of thelicense, and the jury found a verdict in his doU™s&damat ges. It was held, that the freehold or title of the land did not come in question, so as to entitle the plaintiff to full costs under the statute.
    THIS was a special action on the case, fop overflowing the plaintiff’s land, by means of a mill-dam erected by the defendant on his own land. The defendant pleaded not guilty, and gaye notice that he should offer evidence that the dam was erected by permission of the plaintiff.
    At the trial of this cause, at the last circuit in Lewis county, the plaintiff proved that he had the permission of the plaintiff to erect the dam, and overflow his land, if necessary, for the use of the mill. The plaintiff proved a subsequent revocation of the license, and the jury found a verdict for the plaintiff for nine dollars damages.
    The judge before whom the cause was tried, refused a certificate, so as to entitle the plaintiff to full costs, and Gold now moved for full costs.
    
      plaft contra.
   Per Curiam.

. The only question is, whether the plaintiff is entitled to full costs, within the proviso of the 4th section of the act concerning costs, which declares. that the limitation in that section shall not extend “ to any action where the freehold or title to lands or tenements shall in any wise come in question.2? We are of, opinion, that the freehold or title to the plaintiff’s land did not come in question," within the purview of the statute. This case bears no analogy to that of Heaton v. Ferris, (1 Johns. 146.) Here was no claim of a right of entry into the plaintiff’s land, nor of any direct use or enjoyment of it. The defendant merely sets up a right to use his own land, in the manner he has done, by erecting the dam; that any consequential injury to the plaintiff was waived by his express license for that purpose ; and that, it was a mere damnum absque injuria, for which the plaintiff had no right of action. The statute applies only to cases where a claim or question as to the direct use by entry on another’s land comes in controversy. This and many other cases of consequential injuries, as for nuisances erected on the defendant’s own land, do not in any manner bring the title in question. Nor does the setting Up alease or license by the plaintiff raise a question as to the title, or give any right or interest in the plaintiff’s land.

Rule refused..  