This was an action of the case, for digging a trench on the defendant’s land, and thereby diverting the water from the plaintiff’s mill, and throwing off waste slabs, and otherwise injuring and impeding the operations of the mill. Judgment having been rendered for the plaintiffs for less than twenty dollars damages, Men and *107Starrett moved for full costs, and cited Stat. 1821, ch. 59, sec. 30; Bickford v. Page, 2 Mass. 462; Crocker v. Black, 16 Mass. 448 ; Bean v. Mayo, 5 Greenl. 94.

resisted the motion ; contending that the title to real estate was not necessarily and directly involved in the suit, and that it therefore was not within the exception in the statute. The plaintiffs might have had a right to the water, without any title to the soil.

The Court, however, considered the case as nearly similar in principle to that of Crocker y. Black, cited for the plaintiffs; and observed that here the plaintiffs, must necessarily have shown a title io the real estate, as the foundation of their right to recover. And they granted the motion.