Rathke v. Gardner

The statute provides that, “when the right to an easement or the title to real estate is in fact concerned in an action, and the judge before whom the action is tried certifies such to be the fact, the party finally prevailing therein shall recover his full costs, without regard to the amount of damages recovered.” St. 1862, a. 36, § 1. Pub. Sts. e. 198, § 6. Ordinarily, the certificate of the presiding justice, that the right to an easement or the title to real estate is, or is not, in fact concerned in the action, will be conclusive. But when the presiding justice bases his finding of the…