The plaintiff is entitled to costs. The defendant set up a right to overflow this land; and to prove it produced a succession of deeds, including all the lands which the waters drowned by a dam of a certain height. Under these deeds he claimed title to overflow as he had done; and it became a question whether he had overflowed according to the deeds or beyond them; the latter appearing to the jury to be the truth, they rendered a verdict against him. The title then was actually brought in question by the defendant. Though in this action title does not necessarily come in question, yet it may, by evidence of title given by the defendant under the general issue; and when it does, the fact may be ascertained by the oral or written certificate of the judge. Rev. Laws 666, sec. 1,-relates to the action of trespass only.