
    Joseph Heath and C. W. Heath vs. Laton M. Robinson.
    October Term, 1902.
    Present: Rowell, C. J., Tyler, Start, Watson, Stafford and Haselton, JJ.
    Opinion filed January 31, 1903.
    
      Justice of the Peace — Jurisdiction—Title to land — New counts —Appellate Jurisdiction.
    
    Tlie jurisdiction of a justice of the peace, so far as it is determined by the question whether the title to land is concerned, depends upon the declaration and not upon the plea or the course of the trial.
    When, in an action of trespass appealed from the judgment of a justice of the peace, the plaintiff files an amended declaration raising the ad damnum from $20.00 to $100.00, the County Court is ousted of its appellate jurisdiction, if the title to land is concerned.
    In an action of trespass for cutting down the plaintiff’s growing trees, the title to land is necessarily involved.
    Trespass quare ceausum, trespass de bonis, and trover, with ad damnum in each count $20.00, appealed from the judgment of a justice of the peace. At the March term, 1902, Orleans County, Munson, J., presiding, the defendant’s demurrer for misjoinder of counts was sustained. Thereupon, by leave of Court, the plaintiff filed a new declaration in trespass and trover with ad damnum in each count $100.00, which the defendant moved to dismiss. Motion overruled and the defendant excepted.
    
      F. W. Baldwin for the defendant.
    Of the original declaration, the only count that could have been sustained was the one of trespass quare clausum, and then only to recover $20.00. V. S. 1040. The other two counts would have brought in question the title to land, hence the justice could not have had jurisdiction.
    When the case came into County-Court on appeal, that Court had no jurisdiction beyond that of the justice; and to allow the plaintiff to amend himself into jurisdiction, was clearly error. Prindle v. Cogswell, 9 Vt. 183; Whitney v. Sears, 16 Vt. 587; Sanders v. Pierce, 68 Vt. 468; French v. Holt, 57 Vt. 187.
    
      Aldrich & Reirdon for the plaintiffs.
    No new cause of action was brought into the case by the amended declaration. The count in trespass was waived and the plaintiffs elected to retain the other counts. The count in trespass and the ad damnum of over $20.00 were never, both at once, in the case. Under the original declaration the case was within the jurisdiction of the justice and appealable; the amended declaration has not changed it in this respect. There is, therefore, no question of jurisdiction properly in the case.
    This amendment would have been proper in the justice court. V. S. 1148. All amendments are in the discretion of the Court. Chaffee v. Railroad Co., 71 Vt. 384.
    The allowance of the amendment being a matter of discretion will not be reviewed here.. Carpenter v. Gookin, 2 Vt. 495-
   Stafford, J.

In Vermont, justices of the peace may hear and determine actions of trespass upon the freehold, although the title to land is involved, if the ad damnum does not exceed twenty dollars; but they have no jurisdiction of other forms of action, if the title to land is concerned, no matter how small the sum demanded may be. In trespass de bonis, trover, and most other actions, they have jurisdiction to the amount of two hundred dollars. V. S. 1040. Whether the title to land is concerned depends upon the declaration,— that is, whether to prove its allegations will require the plaintiff to prove title to land, — and does not depend upon the plea, nor the course of trial. So, in trespass de bonis for taking and carrying away grass not alleged to be growing when taken, the justice had jurisdiction, although the plea and the evidence brought in issue the title to the land upon which the grass had been cut. Jakeway v. Barrett, 38 Vt. 316. But actions for breach of covenant in a conveyance of land, (Hastings v. Webber, 2 Vt. 407), case for erecting a fence so near the plaintiff’s house as to obstruct his windows, (Whitney v. Bowen, 11 Vt. 250), case for obstructing a stream and causing it to overflow the plaintiff’s land, (Haven v. Needham, 20 Vt. 183), case for leaving open a pent-road gate, thereby letting in cattle that destroyed the plaintiff’s crops, (French v. Holt, 57 Vt. 187), and such like, do put the plaintiff to proof of title to make good his declaration, and are therefore outside a justice’s jurisdiction.

Wheta. the present action was commenced before the justice, the declaration contained three counts, — one, trover; one, trespass de bonis; and one, trespass on the freehold. The first and second were for converting and carrying away wood and timber, and the third was for breaking and entering the plaintiffs’ close and there felling and destroying trees. The ad damnum was twenty dollars. The plaintiffs had judgment , and the defendant appealed to the County Court, where he demurred for misjoinder of counts, and his demurrer was sustained. Thereupon the plaintiffs, having obtained leave, filed an amended declaration, which is treated by both parties as standing in lieu of the first, and being the only declaration now in the case; and this declaration the defendant moved to dismiss, as showing that the Court had no jurisdiction. His motion was overruled, and it is the exception to that ruling which is now before us.

The new declaration contains two counts: The first declares in trespass for cutting down and destroying trees of the plaintiffs glowing upon land which is not otherwise alleged to be the land or close of the plaintiffs, “to the damage of the plaintiffs one hundred dollars.” The second declares in trover for the conversion of wood and timber, “the product of the same trees in the preceding count mentioned,” “to the damage of the plaintiffs one hundred dollars, for the recovery of which with just costs this suit is brought.” By the amendment, therefore, the ad damnum, which is, indeed a part of the declaration, (Chadwick v. Batchelder, 46 Vt. at p. 727), was raised from twenty to one hundred dollars, — an amendment which, had it been made before the justice, would have ousted that court of its jurisdiction, if the title to land is concerned, and must consequently oust the County Court of its appellate jurisdiction upon the same condition.

So the question is, whether to prove their new declaration the plaintiffs must show title to land. It seems pretty clear that they must. They declare for cutting down their growing trees. How can they prove that the trees belonged to them without thereby proving that they had title to land, since such are in law a part of the land upon which they are growing? We think the first count must be regarded as an inartificial count in trespass on the freehold, for the allegation shows that the trespass was a trespass upon the plaintiffs’ land, and the injury an injury to their real estate. It is as if the defendant had been charged with digging up and carrying off a load of soil from the plaintiffs’ garden, or with lifting their house from its foundations and moving it away. Hence we conclude that in refusing to dismiss the amended declaration the County Court erred.

Judgment reversed and cause remanded.  