¶1Trespass' quare clausum fregit. Issues of fact were tried by a jury, and found for tbe plaintiffs, with one cent damages. Tbe Court gave tbe plaintiffs full costs. One of these issues was made upon tbe question of a legally established bigbway.
¶2*133Two pleas were demurred to, and the demurrers sustained. Those pleas set up that the defendant purchased of the ancestor of the plaintiffs a tract of ground adjoining that on which the alleged trespass was committed; that there was no so “convenient way” to said ground purchased as across the remaining land of the plaintiffs, and hence, the defendant crossed said land, as well he might, &c. — which was the trespass, &c.
¶3The pleas meant to set up in defense, and rely upon, a right of way of necessity. S,uch a right may arise from necessity. “ Thus, if a man sells land to another which is wholly surrounded by his own land, in this ease the purchaser is entitled to a right of way over the other’s ground to arrive at his own land.” But necessity, not convenience, is the foundation of the right. 3 Kent, pp. 420, 424.
¶4The pleas in this case demurred to were bad, because they set up a convenience simply, and not a necessity.
¶5The demurrers were rightly sustained.
¶6The remaining question is that of costs.
¶7Section 398, 2 K. S. p. 127, similar to the provision of 1843, enacts that, “In all actions for damages solely, not arising out of contract, if the plaintiff do not recover 5 dollars damages, he shall recover no more costs than damages, except in actions for injuries to character and false imprisonment, and where the title to real estate comes in question.”
¶8In this case the question fairly arose upon the trial under the issues of fact, whether a highway had not been theretofore legally established in the place where, the alleged trespass was cctomitted; and the inquiry now is, was that a question upon the title to real estate within the meaning of the statute? There are different titles to real estate recognized in legal parlance and proceedings, viz., fee-simple titles, legal, possessory, equitable titles. Actions of ejectment are to try legal possessory titles, and we say the title in such cases is in issue.
¶9We think where the question of' highway or not *134arises, the title, that is, the right of possession, of user, may be fairly said to be in issue.
¶10The judgment for the plaintiffs for full costs was right.
¶11The judgment is affirmed with costs.