
    Emil Koenigshof v. Levi W. Spaulding.
    
      Costs — Recovery of.
    
    The second subdivision of sec. 8964, How. Stat., giving costs to a plaintiff in an action where the right to overflow or do any other injury to land, is put in issue by the pleadings, applies to the facts in this case, as stated in the opinion.
    Mandamus.
    Argued January 5, 1886.
    Granted January 20, 1886.
    
      Edward Bacon, for relator.
    
      D. E. Hinmam and Clapp <& Bridgman, for defendant.
   Champlin, J.

The relator brought an action against one Levi W. Spaulding in the circuit court for the county of Berrien to recover damages occasioned by the defendant in digging a trench, from a sheet of water known as Clear Lake,” in the direction of relator’s land, through which the water of the lake was caused to flow upon and over relator’s land to its injury, and claiming damages in the sum of $10,000. The defendant pleaded the general issue, and justified his action under a notice attached thereto, as drain commissioner of Buchanan township, and that, in causing the trench to be dug, he acted in his official capacity and under authority of law. The cause was tried before a jury, who returned a verdict in favor of the plaintiff in the sum of thirty-seven dollars, for which judgment was rendered. Each party claimed that he was entitled to the costs of suit, •and entered a motion accordingly. The circuit judge awarded the costs to the defendant; and this is an application for a mandamus to compel the circuit judge to reverse this order, and award the costs to the plaintiff. We think the writ should issue. Under the second "subdivision of section 8964, How. Stat., the plaintiff is entitled to recover costs in an action where the right to overflow land, or to do any other injury thereto, shall have been put in issue by the pleadings. The writ of mandamus must issue as prayed for.

The other Justices concurred.  