Lead Opinion

FROM MERRIMACK CIRCUIT COURT. *Page 221 Whether the title to real estate is called in question in actions of trespass qu. cl. will appear from the pleadings, or from the evidence given on the trial. Ward v. Bartlett, 1 N.H. 14; Batchelder v. Green, 38 N.H. 265.

No plea appears to have been filed until the time fixed for the trial, when the defendant by his pleadings admitted that as to so much of the locus in quo as is situate north of a given line he had committed trespass to the amount of six dollars, which amount he confessed the plaintiff was entitled to recover; that as to the residue of the premises, he claimed that the title was in himself. The plaintiff thereupon *Page 222 accepted the amount confessed, and admitted that the line described by the defendant in his plea of confession was the true line between the parties. The title to the real estate was not therefore drawn in question by the pleadings or the evidence. This case is not distinguishable from Crosby v. Moore, 6 N.H. 57. It is as if the plaintiff had brought his action for injuries to so much of the locus as is situate north of the agreed line, and had joined a court for injuries to that part situate south of said line, and on a trial had recovered six dollars for damages to the former, and as to the latter the defendant had prevailed. If the suit had been brought only for the injury the plaintiff had really sustained, it is clear he could not recover full costs. Including in his description of the locus a portion of the defendant's close cannot alter the case.

Concurrence Opinion

By the declaration the locus in quo was described as bounded on the south by the defendant's land. Here was plainly no controversy in the declaration about the title to real estate. The defendant described his north line by monuments, confessed that he had broken the plaintiff's close north of that line, and confessed judgment for six dollars, and pleaded not guilty as to the residue of the declaration.

The plaintiff accepted the confession, and judgment was rendered in his favor for the amount confessed and costs. The defendant also offered to prove that he never had claimed north of that line.

It seems sufficiently evident that the title to real estate was not here in dispute, either by the pleadings or the evidence.

It appears to me that the declaration was insufficient, because there is nothing in it which shows that the south line of the plaintiff's land was so marked upon the ground as to be a monument, and therefore the declaration was uncertain. But the defendant, instead of demurring, defined the plaintiff's south line himself, and the plaintiff agreed. Wendell v. Abbott, 45 N.H. 349; Orange v. Berry, 24 N.H. 105. I think the costs should be limited.

LADD, J., concurred.

Costs limited. *Page 223