
    Ezra Crocker versus Thomas Black.
    Actions of the case for an obstruction of a private way are within the exception of the statute as to costs, respecting actions wherein the title to real estate may come in question.
    This was an action upon the case for the obstruction of a private way. Damages laid at fifty dollars. At the trial in the Common Pleas, upon the general issue, the plaintiff’s right to use the way was in question. The jury returned a verdict for the plaintiff, and assessed his damages at eleven dollars. The plaintiff moved for the allowance of full costs ; but the Court adjudged him entitled to one fourth part of the damages, as costs. He excepted to this decision, md the cause being brought here, under the provision of the statute of 1783, c. 42,
    
      Reed, in support of the motion,
    cited the case of Rummer vs. Foster 
       ; which was trespass guare clausum fregit, and full costs were given, on the ground that the title to real estate might be concerned. In this case the title to real estate had actually been in question ; and so the case is clearly within the exception in the statute .
    
      
       7 Mass. Rep. 476.
    
    
      
      
        Stat. 1807, c. 122.
    
   Curia.

The same principle applies in this case, as in actions of trespass. The title to real estate may, and indeed must necessarily come into question in actions like this at bar. For the plaintifi must show a right, or at the least a possession, before he can put the defendant upon his defence. Let full costs be taxed for the plaintiff.  