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. 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

2 As trespass will not lie for injuries to lands in another county, a fortiori it will not lie for injuries to lands in another State.

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 factory), the nuisance was alleged to be maintained on a particular tract of ground, the State was held bound to prove the location as laid, or fail in the prosecution. Wertz v. State, 42

3 Watts v. Kinney, 23 Wend. 484; affirmed, 6 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 flow 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 may 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 line 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. R. 503; Livingston v. Jefferson, 1 Brock. 203; Mostyn v. Fabrigas, Cowper, 161.

2 17 Ohio, 489; citing 1 Chitty Plead. 299. The court treated the action as a local one to be determined by the rules of the common law. In so doing, they overlooked their earlier decision in Genin v. Greer, 10 Ohio, 209, abolishing the distinction between local and transitory actions. If the court had said: "From the rule of this court making all

actions transitory, it would follow that the action could be brought in either State," the dictum would have been sound. The short point involved, "that the State could give a remedy for injuries to land within its borders, though caused by acts done outside, where jurisdiction of the wrong-doer could be had, was correctly determined.

3 Wooster v. Great Falls Manuf. Co., 39 N. H. 246.

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.1

§ 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

1 Eachus v. Trustees of Illinois Canal, 17 Ill. 534. See, also, Slack v. Walcott, 3 Mason, 508, 517. In New York, in the recent case of Ruckman v. Green, 9 Hun, 225, 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.

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. 1198, 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

2 Armendiaz v. Stillman, 54 Texas, 623. The court also relied on the federal case of Rundle r. Delaware Canal, 1 Wall. Jr. 275, which will be noticed hereafter. 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 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. 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 very 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 that 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

1 Holmes v. Barclay, 4 La. Ann. 63. As it is the property injured, which, as between States, determines the character of the action, an injury to a steamer, caused by the wrongful obstruction of a stream by a bridge, is held ground for a transitory action. Where a steamer owned

in Missouri was injured by a bridge over the Mississippi, on the Illinois side, it was held that the action was transitory and could be maintained in Missouri. Mason v. Turner, 31 Mo. 508.

2 The M. Moxham, L. R. 1 P. D. 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