
    SANDS v. MANISTEE CIRCUIT JUDGE.
    Trespass — Judgment—Costs.
    The defendant in an action for trespass to.lands, brought in the circuit court, is entitled to costs, where the title is not put in issue by the pleadings, or contested upon the trial, and the verdict is less than §100.
    
      Mandamus by Louis Sands to compel James B. McMahon, circuit judge 'of Manistee county, to set aside a judgment for costs against relator, as defendant in an action for trespass.
    Submitted February 1, 1898.
    Writ granted February 16, 1898.
    
      Glassmire & Erb, for relator.
    
      George L. Hilliher, for respondent.
   Per Curiam.

Frederick Schulke brought suit against the relator in the circuit court in an action of trespass on the case for overflowing his lands, and recovered a verdict of six cents damages. Upon the trial title was conceded in the plaintiff. The court awarded costs to the plaintiff on the ground that title to land was in issue, and based his decision upon Thorn v. Maurer, 85 Mich 569. In Ostrom v. Potter, 104 Mich. 115, this question received a careful examination in an opinion by Mr. Justice Long, and it was there held that the plea of the general issue did not put in issue the title to lands in an action of trespass. In Thorn v. Maurer, the title in plaintiff was disputed, as appears from the record, which we have examined. The defendant requested the court to instruct the jury that plaintiff had not established such a title as to enable him to maintain the suit. In Druse v. Wheeler, 22 Mich. 439, the defendant gave notice of title with his plea. The rule established in this case is this: That where the title is not put in issue by the pleadings, or contested upon the trial, costs will not be allowed to plaintiff where the verdict is less than $100, but the defendant will recover costs.

The writ will issue.  