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generally: "In all cases where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, there the plaintiff may choose to bring his action in which of the counties he will;" and this rule prevails in most jurisdictions to-day. Where the defendant in Dorset dug ditches, and diverted water from streams watering the plaintiffs farm in Devon, it was held that the action would lie in either county.i In Sutton v. Clarke, it was held that if a trench cut in Northampton causes the plaintiffs lands to be overflowed in Warwick, the action may be brought aud tried in Warwick.2
§ 429. The first American case in point was one of injury to a mill by a dam. The action was brought in Plymouth County, where the mill was, and the dam was alleged under a videlicet to be in the same county. The evidence proved the dam to be in Bristol. Parker, C. J., held that the variance was immaterial, and that the place where the injury was done, to wit, at the mills, gave locality to the action, and not the source from which the mischief came.3 But in the following year the same court, in a case for injuries, caused apparently by the same dam, held that where an injury to a fishery in Plymouth County was caused by the dam in Bristol County, Bulwer's case was decisive, and the owner of the fishery could bring his action in either county.4 In the late case of Pilgrim v. Mellor,6 the defendant had erected a dam in Stark County, which produced an injury to the adjoining land of the plaintiff, lying in Bureau County. The action was
the action is said to have been brought * Thompson v. Crocker, 9 Pick. 59.
in Surrey, " where the land was. And 4 Borden v. Crocker, 10 Pick. 383.
the writ awarded good, because nothing To the same effect see Oliphunt v.
is to be recovered but damages." The Smith, 3 Pen. & W. 180.
land to be fenced, and the plaintiff's 5 1 Brad. (Bl. App.) 448; s. c. 17
land which was injured, both lay in Am. L. Reg. (N. S.) 729. To same
one county, and the land charged with effect see Lower King's River Water
the duty of fencing lay in anothev. Co. v. King's River & Fresno Canal
i Leveridge v. Hoskins, 11 Mod. Co., 9 Pacific Coast L. J., 334 (Sup.
257. See Wells v. Ody, 1 M. & W. 452. Ct. Cal.); Powers v. Ames, 9 Minn.
- Sutton v. Clarke, 0 Taunt. 29. 178 (suable).
brought in the county where the dam was erected, and it was held in the appellate court that the action might be brought in either county.
§ 430. Opposed to these decisions is that in Worster v.
Winnipiseogee Lake Co.,i which came up on facts precisely similar to those in the case last mentioned. The court held that the action should have been brought in the county where the plaintiffs land lay. Gilehrist, C. J., reviewed the authorities at length, and held that the rule in Bulwer's case sprang from the ancient remedy of assize in confinio comitatus, which having become obsolete, the rule must go with it. He says: "The decisions, and they are but few, which hold that an action will lie in the county where the nuisance was done, or in that where the injury was sustained, depend upon Bulwer's case, 7 Co. 1, and that seems to be founded upon reasons which have long since ceased. It does not appear to us that there is any reason for excepting such cases as the present out of the operation of the general rale, and it is very clear that the exception rejects the principle of the rule, and is not a mere modification of the application of it. The erection of the dam, of itself, gave the plaintiff no cause of action. It was not until his land was injured that an action accrued, and this happened in the county of Carroll (where the land lay). The general rule then applies, and it is there that the action should have been brought." 2
i Worster v. Winnipiseogee Lake Co., 25 N. H. 525. For a reference to this case per Ryan, C. J., arguendo, and apparent agreement with it, see in re Eldred, 4ii Wis. 530. See, also, Wisconsin Rev. Stats. (1878), § 2019.
4 He denied the doctrine in the Abbot of Stratforde's case, saying there was no reason for it, and relied principally on Simmons v. Lillystone, 8 Exch. 431; 22 L. J. Exch. 217; 20 E. L. & E. 445. In that case the plaintiff owned premises in the county of Kent, abutting on the Thames at a obtam point of the river called the
Blockhouse Dock, and the defendant obstructed the dock by placing piles, etc., thereon. The venue in the margm of the declaration was London, Parke, B.,said:" Probably the objection might have been raised by special demurrer; but, after verdict, it certainly comes too late, because, then, any defect in the venue is cured by St. 16 & 17 Cav. 2, c. 8. It is enough, for the present purpose to say that there is nothing which makes it necessary to prove, on the part of the plaintiff, that the obstruction took place in the city of London." "It is unnecessary to decide
§ 431. The distinction between local and transitory actions has been modified or abrogated in many of the new systems of procedure; but in most of the States it retains its place as part of the law. In Ohio it has been abolished by judicial legislation;1 and in England it has been abolished by the Judicature Acts, and the question of venue must there be considered as new.2
whether this is a local action, though I am rather disposed to think it is, since it is an injury to the plaintiff's premises." It will be seen that the nuisance,and the land injured thereby, both lay in the same county, and that the objection was that the plaintiff had brought his suit outside of that county. There is nothing here contrary to the exception in Bulwer's case. Baron Parke's consenting that it was a local action is not contrary, because the gist of the exception is that where two counties are involved, the action has two localities, in either of which it will lie, not that it is transitory. The New Hampshire case makes no reference to Leveridge r. Hoskins, 11 Mod. 257. In that case (decided in 1710), Holt, C. J., said: "Here is a cause of action that arises in both counties, and the action may be brought in either." It followed the analogy of the assize in conJinio comitatus, but that remedy had already gone into disuse. The court did not think that the need had disappeared with the old writ. In truth, that assize disappeared only in common with all the writs of ri^ht, and the special necessity in this case for a remedy, in either county, remained the same as ever. Courts generally have held that the rule of the common law was arbitrary and rested on historical grounds (see Doulson v. Matthews,4 D. &E. 603,per Buller, J.), and the distinction is fast disappearing from the new systems of procedure. Genin v. Greer, 10 Ohio, 209; and see 22 Alb. L. J. 47. But the New Hampshire court held that a branch
of the eommon-law rule allowing greater liberality in the venues within which an action can be brought, historically founded on a writ of right, and in its present form dating back to 1406 (Abbe de Stratforde's eaBc), and perhaps of equal date with the rule itself, was an unreasonable invasion of the common law. and that the general rule must be restored and applied with uniform rigor.
1 Genin v. Greer, 10 Ohio, 209; N. Y. Code, 1880, §§ 082, 984. It was early determined in Massachusetts that, by their statutes, an action for injuries to realty where the damage did not exceed twenty dollars might be brought before a justice of the peace for the county where the wrong-doer lived, although the land lay in another county. Sumner r. Finegan, 15 Mass. 280. Under Mass. Gen. Sts. c. 149, it was held that a complaint for flowing land by a dam might include tracts lying in different counties, but overflowed by means of the same dam, and would lie in a county where any portion of the land lies. Bates v. Ray, 102 Mass. 458, and see Todd v. Austin, 33 Conn. 87. In New Jersey it was held that in such actions the venue cannot be changed from the county where the land lies, under their statute. Deacon t>. Shreve, 2 Zab. 204. In a similar case, under the Missouri statute (Wag. St. § 4), it was held that the venue could be changed, and accordingly we find the venue changed three times in that case. Taylor v. AtlanticRailroad Co., 68 Mo. 307.
* 38 & 39 Vict. c. 77, Ord. XXXVI. R. 1 (L. R. 10 Gen. St. 813). In Eng
§ 432. In the case of indictments for nuisances committed in one county and injuring the public in another, the rule of the common law was the same, and the offender was liable to indictment in either county.i But the weight of more recent decisions is opposed to this rule, and limits the venue for an indictment to the county where the act is committed. The remedy by indictment has by legislation in some States become a proceeding in rem, which accounts for the change.
§ 433. The question was considered by the Supreme Court of Wisconsin in Eldred's case.2 That was the case of an indictment of an unauthorized dam, situated in one county, and producing injurious effects in another. Ryan, C. J., in delivering the opinion said: "The venue of local actions rests entirely, in the absence of statute, upon the authority of adjudged cases. But the venue of indictments rests upon fundamental law, as old as Magna Charta, entering into the provision of the constitution of the State." He then reviews the authorities and concludes: "If a dam, being a public nuisance, were on the confines of two counties, it might probably be indicted in cither under § 7, c. 172 of 1858; perhaps if it were within a hundred rods of the county linc. Possibly it would be competent for the legislature to provide that a dam situate in one county, but creating injurious effects in several, might be indicted in either. That question is not determined here, because there is no such statute. But in the absence of such legislation, a dam more than a hundred rods from a county line can be indicted in its own county only.'" He held that the indictment alleging a public nuisance in one county was complete, and that the
land, before the passage of these Bk. 2, c. 25, § 37; 1 Chitty Criminal
statutes, the venue of local actions Law, 193 (2 Eng. and 4 Am. ed.). And
might be changed after issue was see 2 Hale's Pleas of the Crown, 164.
joined, but not before, by order of the But Chitty cites no eases since the
court or judge. Bell v. Harrison, 2 earlier writers which support the rule.
C. M. & R. 733; and see 3 & 4 Wm. 4, He refers to Scott v. Brest, 2 T. R.
c. 42, § 22. 241, and 2 B. & P. 381, which were
i Staundford, l'lees del Corone, lib. private actions for usury. 2, p. 91; citing Ass. Edw. 3; Ann. 19, * In re Eldred, 46 Wis. 530. pl. 6; Hawkins, Pleas of the Crown,
per quod containing the averment of injury in another county was surplusage. "The radical difficulty in the argument" (for the other view) "is that an indictment is directed against the thing, as an offence against the public, while the private action at the common law goes upon the consequences of the thing only, for the recovery of damages for private injury. The maintenance of the nuisance is local in the county where it exists, though its effects may extend beyond the county."
§ 434. In Pennsylvania, where works were erected on a stream in Center County, which corrupted its waters in an adjoining county, it was held that the indictment could be prosecuted in Center County.1 In Maine, where a dam lying partly in the town of Eddington, and partly in Bangor, both in Penobscot County, was alleged to be a nuisance, the indictment charging that the offence was committed in Bangor, it was held that the place was laid as venue and not as a description of the offence, and that the variance was immaterial.2
§ 435. In general, the rule holds good of indictments for nuisances that the venue need only be laid in the body of the county, but matters of description of the offence must be strictly proved as laid. So an indictment for obstructing a navigable stream must state the name of the stream, the place where the obstruction is situated, that the part obstructed is navigable, and that the passage of boats is obstructed at that point.3 Where the indictment is a pro
1 Commonwealth v. Lyons, 1 Clark either of them, and within said county (Penn. L. J.) 497. of Penobscot," it was held that the
2 State r. Godfrey, 12 Maine, 361. place was sufficiently alleged. State The venue of an indictment for any v. Roberta, 20 Maine, 203. So where offence committed in, or upon, a body an indictment (for murder) charged of water, is laid in the adjoining that the act was committed "at an county. Where an indictment charged island called 'Smutty Nose,' a place that the offences (of assault and within the County of York," it was rescue) were committed " on the said held sufficient. State v. Wagner, 61 Penobscot River, between the two Maine, 178.
towns of Knficld and llowland afore- 8 Cox v. State, 3 Blackf. 193. said, or within the limits aforesaid or