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ceeding to abate, great accuracy of description and proof is required. An indictment of a mill-dam, creating a public nuisance by flowage, described the nuisance as "a certain mill-dam in, about, and across a certain stream of water in said county, called Elkhart River," and this was held insufficient even after judgment for the State. "The land on which the dam is constructed," said the Court, "could have been described, or such a reference to known objects near or adjacent to it might have been made, as would have rendered the indictment in point of description sufficiently certain."1
§ 436. Where different states or sovereignties are involved in actions of this kind, the question is different.2 Actions will not be entertained for nuisances committed outside the State, and affecting lands in another State. Where the plaintiff owned a mill in New Jersey, from which the defendant diverted water by cutting a trench in New Jersey, and the plaintiff brought suit in New York, averring that the wrongful acts were done in New Jersey, to wit, at the city and county of New York, it was held that the action would not lie in New York.3 Where the nuisance is located in one State and the property injured is in another, the rule of the common law applies strictly that the action must be brought in the jurisdiction where the land which is injured is situated. And this is not inconsistent with the exception in Bulwer's case. By the common law, where the offence was complete in the sovereign's dominions, he gave a remedy in either of two counties, for injuries caused in one county and accomplished in another. By the common law the sovereign gave his subjects redress for any injuries to lands in his dominion, though caused by acts outside, if jurisdiction over
1 Wood v. State, 5 Ind. 433. Where, Ind. 161. Confer Roscoe's Crim. Ev.
in an indictment for maintaining a 85.
nuisance (in this case a soap fac- J As trespass will not lie for in
tory), the nuisance was alleged to be juries to lands in another county, a
maintained on a particular tract of fortiori it will not lie for injuries to
ground, the'State was held bound to lands in another State, prove the location as laid, or fail in 3 Watts v. Kinney, 23 Wend. 484;
the prosecution. Wertz v. State, 42 affirmed, ti Hill, 82.
the offender could be obtained. But the sovereign acting through the common law never attempted to redress injuries to foreign real estate, springing from causes set in motion within his dominion, the reason being that the act is wrongful only by reason of consequences happening beyond his territory and jurisdiction.1
§ 437. The first American case in which the question was involved was that of Thayer v. Brooks.2 There the action was brought in Ohio for injuries to a mill and water-power in Ohio, by the diversion in Pennsylvania of water which was accustomed to How to the mill. The supreme court of Ohio held that the action would lie. In their opinion the court say: "The act was done in Pennsylvania, the injury which was occasioned by that act was sustained in Ohio. In such a case it is believed the suit would well lie in either State. When an injury has been caused by an act done in one county, to land, etc., situated in another, the venue ma)' be laid in either." The point agrees with the law in general, but the dictum that the action would lie in either State is unsound in principle, and contrary to the weight of the authorities.
§ 438. In 1855 a similar question came up in Maine. It was held that an action on the case would lie in Maine for flowing lands in that State by a dam across a river forming the boundary Hue between Maine and New Hampshire, to feed a mill situated in the latter State.3 The next case came
1 Doulson v. Matthews, 4 T. B. 503; actions transitory, it would follow Livingston v. Jefferson, 1 Brock. 203; that the action could be brought in Mostyn v. Fabrigas, Cowper, 101. either State," the dictum would have
2 17 Ohio, 489; citing 1 Chitty been sound. The short point involved. Plead. 299. The court treated the "that the State could give a remedy aetion as a local one to be deter- for injuries to land within its borders, mined by the rules of the common though caused by acts done outside, law. In so doing, they overlooked where jurisdiction of the wrong-doer their earlier decision in Genin v. Greer, could be had, was correctly deter10 Ohio, 209, abolishing the distinc- mined.
tion between local and transitory ac- 3 Wooster v. Great Falls Manuf.
tions. If the court had said:" From Co., 39 N. H. 246. the rule of this court making all
up in Illinois. A dam which was erected in Will County, Illinois, for the purpose of feeding a canal, caused the flooding and injury of lands in Indiana. The owner of the land brought suit in Illinois. It was held that the action would not lie, and that only the courts of the State within whose limits the injured lands lay could take jurisdiction.i
§ 439. A contrary decision was reached in a recent case in Texas. The parties were both citizens of Texas, and the plaintiff owned lands on the south bank of the Rio Grande, in Mexico. The defendant placed obstructions in the bed of the river, on the Texas side, which threw the current of the river against the plaintiff s land, and caused serious injuries. The court followed the obiter dictum in Thayer v. Brooks, held that the rule in Bulwer's case applied, and that the action could be maintained.2
§ 440. In a State which has abolished or does not recognize the distinction between local and transitory actions, an
i Eachus v. Trustees of 11linois Canal, 17 11l. 534. See, also, Slack v. Waleott, 3 Mason, 508, 517. In New York, in the recent case of Ruckman v. Green, 0 Hun, 22o, it was held that an action could be maintained in New York for an injury to lands situated in New York, caused by a nuisance (a noxious trade) established and carried on in New Jersey.
- Armendiaz v. Stillman, 54 Texas, 023. The court also relied on the federal case of Rundle ». Delaware Canal, 1 Wall. Jv. 275, which will be noticed hereaftev. The Texas court said (p. 631): "In our opinion, however, these common-law rules, respecting local and transitory actions, have no more to do in determining; with us where suit can be brought and maintained, than the like rules in respect to the form and names of actions; but this solely regulated by and dependent upon the proper construction of the constitution and statutes of the State. In
the first it is emphatically declared in the bill of rights as a fundamental principle of government, that 'all courts shall be open, and every person, for any injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law.' Now a party may not have an action in rem for or concerning land in a foreign jurisdiction, because redress cannot be given or had by such proceeding in due course of law; but personal damages may be given and enforced by due process of law within the State." This view is singular, as the statute, cited in the argument, provides (Tex. Rev. St. 1879, Art. 1108. pl. 13): "Suits for the recovery of lands or damage thereto; suits to remove encumbrances upon the title to land; suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land or a part thereof may lie."
action in personam will lie for injuries to foreign real estate. An action was held to lie in Louisiana for damages to land and buildings in Illinois caused by a steamer which, in plying upon the Mississippi River during a high flood, struck against and injured the buildings.i An exception, taken below on the ground that the action would be local by the law of Illinois, was overruled. The Supreme Court said: "The present action is under our laws, a personal action, and is not distinguished from any ordinary civil action as to the place or tribunal in which it may be brought."
§ 441. The same question recently came up in England in the Admiralty Division, and again in the Court of Appeal, but was determined by an agreement of the parties.2 The owner of a pier in Spain brought an action in the English court against the owner of an English ship for an injury caused by the ship knocking down a pier attached to the Spanish soil. James, L. J., said: "It is a very novel action, and veiy grave difficulties indeed might have arisen as to the jurisdiction of this Court to entertain any action or proceedings whatever with respect to injury done to foreign soil. But the question of jurisdiction has probably been successfully got over by what has been done in this case, inasmuch as the ship in question, the owner of which is sued, and which by a figure of speech may be called the delinquent ship, having been arrested in Spain, was released upon an agreement between the parties thit all. remedies against the ship and against the owners should be tried in this country. Such an agreement would give jurisdiction by contract, not only jurisdiction by consent." "Possibly this would get rid of the question, and the Court of Admiralty would have jurisdiction to enforce against the ship an equi
i Holmes v. Barclay, 4 La. Ann. in Missouri was injured by a bridge
63. As it is the property injured, over the Mississippi, on the 11linois
which, as between States, determines side, it was held that the action was
the character of the action, an in- transitory and could be maintained
jury to a steamer, caused by the in Missourl. Mason v. Turner, 31
wrongful obstruction of a stream by Mo. 508.
a bridge, is held ground for a transi- - The M. Moxham, L. R. 1 P. D.
tory action. Where :i steamer owned 43, 107.
table right arising from this contract, by virtue of which the ship was released from its liability under the jurisdiction in Spain." Mellish, L. J., was equally doubtful of the jurisdiction, apart from the contract.1
i See comments on this case in Foote's Private International Jurisprudence, pp. 135, 390. Mv. Foote considers the question as it was at common law, and as one of general jurisprudence. On p. 137, he thus condenses Lord Mansfield's opinion in Mostyn v. Fabrigas (1 Sm. L. C, 058, 680), before cited: "Lord Mansfield pointed out that there is a formal and a substantial distinction as to the locality of the trials. The substantial distinction is where the effect of the judgment cannot be had if the action is laid in the wrong place. The formal distinction is that which arises from the mode of trial, and coludes certain actions by means of the rules of venue. And, by way of example, it was said that there might be a solid distinction of locality, if an action were brought relative to an estate in a foreign country, where the question was a matter of title only, and not of damages. It cannot be doubted that the rule as to venue was, in Lord Mansfield's mind, the only obstacle to the trial by an English court of an action for injury to foreign realty. Nor is it easy to maintain that there is any reason more valid to restrain the jurisdiction now that that obstacle is removed. The execution of the judgment in such an action, inasmuch as it can only be brought when proper service is effected on the defendant, and execution can only issue on his person or property within the jurisdiction, cannot interfere with the sovereign rights of a foreign power, as it would in an action for the title to or possession of land. An injury to land is in fact a personal injury to its owner, and is no more beyond the jurisdiction of an English court, on general principles, than other per
sonal injuries are." On page 390 of the same work, he says: "That difficulties would arise there can be no doubt, as the abolition of the rules of venue have cut away the main ground upon which the earlier decisions on the point were founded; but it is submitted that the result of the change has been to make the reasoning of Lord Mansfield in Mostyn v. Fabrigas applicable to its full extent, and to remove all reasons that existed previously from excluding actions for damages in respect of injuries done to foreign immovables from English courts." To same effect see Westlake, Private International Law, ed. 1880, p. 210, note, on actions for trespass to foreign soil. See, also, The Lhla, cited in note, L. li. 2 Adm. & Eccl. 29, and De Lovio v. Boit, per Story, J., 2 Gallison, 398, 474, 475. The distinction is abolished by the New York code, and the question of venue opened anew. Actions for waste and nuisance must be brought in the county where the land lies, but no provision is made for actions for trespass. In the Albany Law Journal, vol. 22, pp. 47-50, a contributor contends forcibly that the effect of the code is to give the courts of that State jurisdiction of actions for injuries to land situated in a foreign State or county. The code provides (§ 982): "But where all the real property to which the action relates is situated without the State, the action must be tried as prescribed in § 984 of this act." § 984 reads : "An action not specified in the last two sections must be tried in the county in which one of the parties resided at the commencement thereof. If neither of the parties then resided in the State, it may be tried in any county