Utter v. Gifford , 25 How. Pr. 289 ( 1862 )

By the court, Hogeboom, Justice.

In this case the order of the court was, that the plaintiff, though recovering less than $50, was entitled to costs. This could not have been on the ground that the title to lands came in question on the trial, for there was no certificate of the judge of that fact, and the judge’s certificate is the only legal and proper evidence, at least in the first instance. (Code, §304; Burhans agt. Tibbets, 7 How., 74; Niles agt. Lindsley, 8 How., 131.) The decision therefore must have been upon the ground, either that costs are given by law in all actions of trespass upon lands, or that a claim of title to real property arises on the pleadings. (Code, § 304.)

1. As the section of the Code above cited is the only one under the Code which relates to this subject, we must go back to the previous law and see if that gave costs in all actions of trespass upon lands; and if so, whether it has been repealed by the Code. The absolute right to costs upon a recovery for any amount is claimed under the provisions of the Revised Statutes, which it is insisted have not been repealed. By 2d Revised Statutes, 613, sec. 3', sub. 1, the plaintiff recovering judgment on a verdict in any of the actions relating to real estate, enumerated in the 5th chapter of that act, is entitled to costs. Among the actions mentioned in the 5th chapter is the title “ Of trespass on lands,” which, among other things, (2 R. S., 338, §§ 1, 2, 3,) authorizes a recovery of treble the damages assessed by a jury in cases where a person cuts down or carries off any wood, underwood, trees or timber on the lands of any other person, without the leave of the owner thereof; but single damages to be only recoverable where, on the trial of the action, it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land was his own. The plaintiff’s complaint shows a cause of action within the description embraced in this title. The question is, therefore, whether this statute has been repealed ? 1st. It has not been expressly repealed, at least so it has been held by the court of appeals in Bartle agt. Gilman, (17 How., 1; 18 N. Y. R., 260.) The only section which is cited as directly repealing it is section 303 of the Code, which abolished all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsellors, and allows to the prevailing party, by way of indemnity, certain sums termed costs. This was held, in the case last cited, only to repeal title 3, “Of the fees of certain officers,” of chapter 10 of the third part of the Revised Statutes, leaving untouched title 1, “Of the cases in which costs may be recovered,” and title 2, “ Of security for the payment of costs,” (2 R. S., 612, title 1,) above cited. It is the one which allows costs, as before cited, in certain actions “ Of trespass on lands,” under the decisions above made, which we must follow. We are not at liberty to say that this section is expressly repealed.

2. Is it repealed by implication or as being inconsistent with the provisions of the Code ? Section 468 declares that “ all statutory provisions inconsistent with this act are repealed.” Section 411 declares that, “until the legislature shall otherwise provide, the second part of this act shall not affect proceedings upon mandamus, nor any existing statutory provisions relating to actions not inconsistent with this act,” and is in substance applicable to the actions hereby provided ; nor any proceeding provided for by chapter 5 of the 2d part of the Revised Statutes, or by the 6th and 8th titles of chapter 5 of the 3d part of those statutes. The 6th title is “Of trespass on lands.” The provisions of that title are not therefore repealed, and the only question is, whether the right to costs, applicable to those provisions as fixed by the Revised Statutes, are repealed ? The titles named in the 5th chapter are: 1st, in ejectment; 2d, proceedings to compel the determination of claims to real property; 3d, partition; 4th nuisance; 5th, waste; 6th, trespass on lands; 1th, general provisions; 8th, proceedings to discover the death of persons. Section 455 applies the provisions of the Revised Statutes to all actions for the recovery of real estate, brought under the Code ; section 448 applies them to actions for partition; section 449 declares “ that proceedings to compel the determination of claims to real estate may be prosecuted by actions under the Code;” section 453 abolishes the writ of nuisance; and section 453 gives the benefit of that writ in the form of an action under the Code ; section 450 abolishes the action of waste, but authorizes an action under the Code to obtain similar relief. Unless the before mentioned provisions of the Revised Statutes, in regard to costs in proceedings had under the 5th chapter aforesaid, are deemed to be in force, it is doubtful whether costs are recoverable of course in any of the proceedings or actions authorized by the 5th chapter, unless it be the action of ejectment. The only section of the Code giving costs is section 304; and the only portion of that section under which costs could be claimed is the 1st subdivision, which is as follows : “ 1st, in actions for the recovery of real property, or where a claim of title to real property arises on the pleadings, or is certified by the court to have come in question on the trial.” Strictly speaking, none of the actions embraced in the ¿th chapter are actions for the recovery of real property, except the action of ejectment. The same section of the Revised Statutes, before quoted, gives costs of course “ in all the proceedings to recover the possession of land forcibly entered or forcibly detained;” and there is no doubt whether this comes under the provisions of section 304, before quoted, and yet as no more meritorious claim for costs could arise than in the case last mentioned.

So also subdivision 3 of section 3 of title 1 of chapter 10 of part 3 of the Revised Statutes, before quoted, (2 R. S'., 613,) gives costs of course in suits and proceedings upon writs of scire facias, and a general prohibition or information in the relation of a quo warranto. The Code, (§ 428 to 447,) retains the beneficial remedies sought under these proceedings, but directs them to be brought in the form of an action under the Code. But I do not see that it gives costs of course, unless the sections of the Revised Statutes, before quoted, are deemed to be unrepealed.

From this review of the legislation which has been had upon this subject, it is seen that the subject is involved in much doubt and confusion, and there would seem to be a necessity for some explicit legislation regulating it. In the absence of such legislation, I deem it very questionable whether the section of the Revised Statutes giving costs in a case like the present has been repealed by the Code ; and if we follow the spirit of the decision in Bartle agt. Gilman, above cited, I think we should hold it is not.

It is true it may be claimed that several of these actions are provided for, as it is barely possible they were intended to be, by section 306 of the Code, which provides that “ in other actions costs may be allowed in the discretion of the court.” But this is fatal to the defendant, as the court has exercised it-s discretion (if any existed) in this case, by awarding costs in favor of the plaintiff.

II. On the other branch of this case, to wit: whether a claim of title to real property arises on the pleadings, (see sec. 304 of the Code,) I am of opinion it does not. So far as I can comprehend the answer, its object and effect is : 1st, to disclaim all title to the land in question ,• 2d, to show that the trespass was casual and involnntary, and that the defendant had probable cause to believe that the land was his own; 3d, to show that the supposed trespass was committed with the license of the plaintiff.

It is true the defendant says, “ the parties agreed to and did straighten the line between them, and the plaintiff permitted defendant to occupy to the straightened line, and that some of the timber was cut on the part so set apart (to defendant) by plaintiff, and that afterwards by consent of the parties a straight line was run by a surveyor, and defendant did cut up to that line as he •supposed was his own, and had a right so to do, and which was done, as defendant believes, with the knowledge, consent and license of the plaintiff, and not otherwise.” The plaintiff urges that the words in the answer, that “ the defendant had a right so to do,” must be construed as asserting a title to the trees or timber thus cut; but I think such was not the design of the pleader, and that we ought not so to construe the answer, after the careful admission of the plaintiff’s title at the commencement of the answer; but the words must be construed as if they had read, “ as he supposed was his own, and as he supposed he had a right to door else as asserting a right to cut the timber because he had the plaintiff’s license or authority so to cut. Thus understood, they do not bring the title of the land in question; for it has been repeatedly held, that acts done under such a license are not done under a claim of title, but, on the contrary, in effect admit the title to be in the other party by the very act of seeking a license from him. (Rathbone agt. McConnell, 20 Barb., 311; Pierpont agt. Barnard, 2 Seld., 279 ; Doolittle agt. Eddy, 7 Barb., 75 ; People agt. N. Y. Com. Pleas, 18 Wend., 579 ; Burhans agt. Tibbets, 7 How., 75 ; Launitz agt. Barnum, 4 Sand. S. C. R., 637; O’Reilly agt. Davis, 4 id., 722.)

But, upon the ground first discussed, I conclude, though with some hesitation, that the plaintiff was entitled to costs, and therefore the order of the special term should be affirmed, with $10 costs.