Ve are of the opinion that under C. C. P. § 276, the plaintiff is entitled to recover costs. But of course he is not entitled to recover unnecessary costs. So the question is whether the survey and the attendance at the trial of the surveyors, they being summoned, were proper or necessary costs. The survey was ordered by the Court upon motion of the plaintiff it is true, and that was an adjudication that a survey was proper. That it was useful was shown by the fact that it was ordered by the Court and used *598 upon the trial by the defendant himself. Surely then he can not complain that it was useless or unnecessary.

■What has been said of the survey may be said of the surveyors. It was prudent in the plaintiff to summon them, as they would probably be needed to explain the survey. They were examined as witnesses by the defendant, and therefore it is not for the defendant to say that they were useless. It often happens that a party prepares testimony which will probably be necessary, but which turns out not to be so for him upon the trial; and then he will not be allowed to have them taxed in the costs, unless their materiality is shown, which is usually done by tendering them to the other side who may examine them to show that they were not material. Here the surveyors were not sworn or examined by the plaintiff or tendered to the defendant; but then that was made unnecessary by reason that the defendants examined them as witnesses of their own accord.

There is error. There would be judgment here for the plaintiff for full costs of the survey and of the surveyors as witnesses, ,but the fees of the witnesses do not appear of ¡record, and therefore this will be certified to the Court below, and the case remanded to the end that there may be judgment for the plaintiff below in accordance with this opinion.

Error. , • Reversed.