
    O’Reilly v. Davies.
    In an action of trespass' for entering and taking away rock and stone from plaintiff’s land, where the defendant sets up in his answer that he entered pursuant to a contract by which he was to blast and remove the rock to enable the plaintiff to erect houses on the land, and was to have the rock as a part of his compensation ; it was held, that “ a claim of title to real property" did not arise on the pleadings. '
    The defendant, in such a case, recovers costs, if the plaintiff recover less than fifty dollars damages.
    Where the answer does not traverse the plaintiff’s possession or title, he is not put to prove his title, although the land be wild and vacant.
    April 10, 1852.
    Complaint for trespass in entering a lot of plaintiff and blasting and carrying away rock and stone tberefrom. The answer stated that plaintiff contracted with defendant to blast off the rock and stone, to enable cellars to be made and buildings erected on the premises, and, among other things, defendant was to have the rock obtained in blasting. Defendant '’accordingly went on and continued blasting the rock by plaintiff’s direction and assent until forbidden by him. And that by the contract the rock and stone belonged to the defendant.
    The reply alleged that the defendant offered to do the mason work for three houses on these premises, for $3100, and plaintiff then said to him, that he would give -him the contract for such mason work, if he pleased plaintiff in some buildings he was erecting for plaintiff. No binding bargain was made, but defendant immediately commenced blasting the rock and stone. In a short time, defendant notified plaintiff he would not build the houses, and the latter not being pleased with his work on the other buildings, contracted with one Courter for the mason work of the three houses.
    The cause was tried by a referee, who reported that the defendant entered on the lot, which was vacant and unoccupied, in the expectation entertained by both parties, that he would have the contract for building the houses, and he commenced and continued the excavation under this expectation, till about the time notice was given to him to cease. That in so entering, it was at the risk of his not obtaining the contract, and not having obtained it, he was liable to the plaintiff for the value of the stone taken away, which the referee found’was $49.33. That the defendant was not liable for a malicious trespass, and therefore the referee reported in favor of the plaintiff for $49.33 damages.
    Each party claimed to recover costs.
    
      H. Hilton, for the plaintiff,
    cited 1 R. L. 344, § 4; Laws of 1824, ch. 238, §§ 1, 9 ; 2 R. S. 613, § 3; Code of Proc. §§ 304, 311, 81, 54; 8 Cowen, 115; 7 Wend. 495; 6 Ibid. 539; 18 Ibid. 79 ; 10 Ibid. 563 ; 1 John. R. 146 ; 2 Ibid. 185 ; 3 Cow. 382 ; 3 Denio, 173 ; 1 John. Cas. 162 ; 2 Black. Com. 195.
    
      L. S. Ashley, for the defendant,
    cited 2 Caines, 220; 10 John. 302 ; 11 Ibid. 404 ; 7 Wend. 495 ; 10 Ibid. 563 ; 18 Ibid. 579, and 649 ; 1 How. Pr. R. 180 ; 2 Code Rep. 152.
   Sandrord, J.,

(with the concurrence of all the Justices.)— We think, on consideration, that there was no “ claim of title to real property,” made by the pleadings in this case. The answer admits the plaintiff’s title unequivocally. It attempts to justify what has been done, by a contract made with the plaintiff to blast the rock on his land and remove it out of his way so that he might build houses there, and as part of his reward for his labor, the rock removed was to be the defendant’s. This sets up no title to the rock in the land, nor to any part of the freehold. It is a contract to do certain acts on the plaintiff’s land, as his laborer or servant, and for his benefit. If there were such a contract, the defendant had a right to enter on the land to do the Work. If there were none, his entry was a trespass. His claim is no more than a license. It does not savor of title. His claim to the stone is not that he had any right or title to them as stone or rock in the plaintiff’s soil, or as being a part of the soil. Before they were blasted out, he could not mark out or designate any portion of the rock or stone which was his or would ever become his under the contract. His claim of right to them was a mere corollary to the execution of his contract to do labor for the plaintiff, and arose from its execution. It was thus a claim to the rock after it was removed and blasted, not to rock attached to the freehold.

In Powell v. Rust, 1 Code Rep. N. S. 172, to which we were referred, the defendant’s claim was, that the title to the growing shrubs, roots, &c., was in him, and had never been out of him or in the plaintiff. It was as much a claim of title to a part of the freehold, as if it had been made of a'city lot reserved out of his sale and conveyance of a larger tract to Powell. If, in that case, Rust had conceded that Powell owned the shrubs, roots, &c., and had justified upon a contract by which he was to remove them from Powell’s land in order to turn it to some other use, and was to have the shrubs as a part of the price of his labor in removing them, the case would have been like the one before me, and I think the learned and respected court which passed upon it would have held the defendants entitled to costs. The statement of right in the answer is not as strong as that made by one entering upon and claiming land under an executory contract of sale, which it is held does not constitute a claim of title. (Dolittle v. Eddy, 7 Barb. S. C. R. 75.)

The fact that the plaintiff’s lots were vacant and unoccupied, gives him no right to costs. The rule on which he relies was applied to wild lands, under the old system of pleading, but it is now inapplicable, because if the defendant do not in his answer deny the plaintiff’s possession or title, he need give no proof on-the subject. Here neither was denied, so that no proof of title became necessary in consequence of the land being unoccupied. The cases cited show that where the possession of wild land is put in issue, the title is also in issue, because the plaintiff, to show possession, must prove his title.

The defendant is entitled to the costs of the suit.  