Pevare v. Towne

57 N.H. 220, 1876 N.H. LEXIS 90

Opinions

FROM MERRIMACK CIRCUIT COURT. 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 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.