
    Abiel Bowen, Appellant, v. William O. Holdredge, Respondent.
    Fourth Department,
    November 17, 1909.
    Beal property—trespass — when question of title raised by pleadings — costs — partial success on appeal.
    Where the defendant sued for trespass upon lands and cutting down fence posts erected by the plaintiff denies the trespass and also that the plaintiff is owner of the lands, the claim of title to real property arises upon the pleadings, and the plaintiff, having succeeded, is entitled to costs irrespective of any certificate that a claim of title came in issue.
    
      Where the answer absolutely denied the title of the plaintiff, but he establishes ownership subject to a mere right of way of the defendant, the issue of title is found in the plaintiff’s favor.
    No costs will be allowed where neither party fully succeeds upon appeal.
    Appeal by the plaintiff, Abiel Bowen, from parts of a judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Orleans on the 10th day of August, 1908, upon the report of a referee; also from parts of the amended judgment entered in said clerk’s office on the 13th day of October, 1908, and also from an order entered in said clerk’s office on the same day, vacating the certificate of the referee that the title to real property came in question on the trial, and directing the clerk to retax costs and amending the judgment as to such costs.
    
      W. C. Ramsdale, for the appellant.
    
      John J. Ryan, for the respondent.
   Williams, J.:

The original judgment should be affirmed, and the order vacating the certificate by the referee and amending the judgment and directing new taxation of costs and the amended judgment should be reversed, without costs to either party against the other.

The action was brought to recover damages for trespass upon real property and cutting down and removing posts for a fence the plaintiff proposed to erect. The defendant admitted the cutting and removal of the posts, but denied the entry on the land was a trespass, and denied plaintiff was the owner of the land. He claimed he had a right to use the land, that the posts obstructed such use, and he had a legal right to remove them.

The referee decided that the defendant had a right of way from his property through the line of posts into an alley, for the purpose of ingress and egress, but the plaintiff had a right to set the posts ana build a fence thereon, with suitable gates or bars therein, through which such ingress and egress could be had, that the defendant had no right to cut down or remove the posts, that it was a trespass to do so, and the plaintiff was entitled to recover damages therefor, which he fixed at three dollars; he ordered judgment against the defendant for this amount, with costs.

First. The appellant claims the referee erred upon the merits, and that the judgment should be reversed for that reason. We think, however, that the conclusion arrived at, as to the rights and interests of the parties in the real property, was about right and should not be interfered with.

Second. As to the question of costs, there seems to be no doubt that the claim of title to real property arose upon the pleadings. The amended complaint alleged that the plaintiff was the owner and possessor and entitled to the exclusive possession of the property upon which the alleged trespass and destruction of the posts were committed. The answer to this amended complaint denied the trespass, and added, “ And denies that the lands on which said fence posts were set, * * * belonged to the plaintiff,” and followed this up with a general denial of all other allegations. Other .defenses were set up, but under the denials above referred to, the plaintiff could not get on at all in the case unless he proved his title, and the defendant had a right to give any proof he could to show the plaintiff had no title. Title would have to be found in plaintiff or he could not recover for the destruction of the posts. It needs no argument to show that a claim of title to the real property arose upon the pleadings.

This being so, the plaintiff was entitled to costs, whether there was any certificate by the referee that a claim of title came in question upon the trial or not, a final judgment having been rendered in his favor.

Section 3228 of the Code of Civil Procedure provides: The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions : “ 1. An action, triable by a jury, to recover real property, or an interest in real property, or in which a claim of title to real property a/rises upon the pleadi/ngs or is certified to have come in question upon the trial.”

It cannot be urged properly that this issue of title was found for defendant and against the plaintiff. It was not so found. The referee found the plaintiff was the owner, had possession and the right of possession, but it was subject to the defendant’s easement, right to pass over the land from his own premises to and from the alley.

Third. The certificate was, it seems to me, properly made by the referee. Tire plaintiff claimed on the trial the ownership and exclusive right to the possession of the property where he set the posts. The defendant claimed that the alley was a public way, and that the defendant had a private right of way over the alley. These respective claims brought the question of title in issue, and the nature of the title and rights of the parties were considered and determined by the referee. He decided the alley was not a public way, and that the plaintiff had the whole title to the property, save only an easement, a private right of way by defendant over the same. It is not true that all of the issues as to title were decided in defendant’s favor. They were not. The answer was too broad and the course of the trial too general to permit' the claim that the only issue was as to the wrongful cutting of the posts. The court in Special Term fell into error in stating what the answer was, and" defendant's counsel in his points in this court stops short of stating what the answer contained. The trial followed the pleadings, which put the title in issue, and litigated the issues formed by the pleadings, and all these issues were determined in plaintiff’s favor, save only the defendant’s easement, a private right of way over the property.

Fourth. The views herein expressed are not elaborated. The referee and the court at Special Term have both written opinions, have expressed their respective views quite fully, and we concur in the views expressed by the referee rather than those by the court. We are led to hold that the plaintiff was entitled to costs, the certificate should not have been vacated and the judgment should not have been amended and the clerk directed to retax costs for the defendant and insert them in the judgment.

Ho costs should be allowed here, as neither party has fully succeeded upon this appeal.

All concurred.

Original judgment affirmed, and order vacating the certificate by the referee and amending the judgment and directing a retaxation of costs and the judgment as amended reversed, without costs of this appeal to either party.  