Dodge v. Colby

• Decision Date: 28 February 1888
• Parties: DODGE v. COLBY.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 445

15 N.E. 703

DODGE

v.COLBY.¹

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, supreme court, First department.

George E. Dodge brought suit against John L. Colby for trespass to certain lands situated in the state of Georgia and for slander to the title. To the complaint the defendant interposed a demurrer, which the supreme court, at special term, overruled. On appeal to the general term the court sustained the demurrer, and the plaintiff appealed.

John E. Parsons, for appellant.

Stephen B. Brague, for appellee.

RUGER, C. J.

The defendant demurred to the complaint in this action, and to each separate cause of action stated therein, upon three grounds, viz.; First, that the court has not jurisdiction of the subject of the action; second, that the complaint does not state facts sufficient to constitute a cause of action; third, that causes of action have been improperly united, viz., a cause of action for slander of title, which is a transitory action, with one for trespass on lands without the state, of which the court has no jurisdiction. The special term overruled the demurrer, and on appeal to the general term that court reversed the order of the special term. The general term held that the first and second counts of the complaint each stated a cause of action arising out of trespasses upon lands situated in the state of Georgia, and that in respect to such actions the courts of this state had no jurisdiction, and therefore sustained the demurrer to those counts.

We concur in the conclusions reached by that court in respect to this portion of the complaint. The counts referred to, we think, under the liberal system established by the Code, each clearly stated a good cause of action in trespass quare clausum fregit, and entitled the plaintiff, if sustained, to recover for all damages accruing to him from the acts described therein. It constitutes no answer to this proposition that the plaintiff might have recovered, upon the facts stated, some of the damages alleged to have been sustained by him, in an action of trover, so long as the gravamen of the charge was the unlawful intrusion upon his real estate. The cutting and tapping of trees constituted the real basis of the damage sclaimed. While the counts referred to each allege the value of the timber and turpentine claimed to have been carried away from the premises of the plaintiff, this is merely incidental to the trespass alleged, and the complaint concludes with a general prayer for judgment which would cover the damages arising from the alleged unlawful entry upon the plaintiff's lands, and the trespasses committed thereon, as well as the incidental damages arising from the conversion of his property. The docrine that the courts of this state have no jurisdiction of actions for trespasses upon lands situated in other states is too well settled to admit of discussion or dispute. Telegraph Co. v. Middleton, 80 N. Y. 408;Cragin v. Lovell, 88 N. Y. 258. The claim urged by the plaintiff that if not permitted to maintain this action he is without remedy for a most serious injury, is guite groundless, and affords no reason for the assumption of a jurisdiction by this court which it does not possess. The plaintiff would seem to have the same remedy for the trespasses alleged that all other parties have for similar injuries. His lands cannot be intruded upon without the presence in the state of the wrong-doer, and no reason is suggested why he could not seek his remedy against the actual...