Allin v. Connecticut River Lumber Co.
| Decision Date | 04 January 1890 |
| Citation | 150 Mass. 560,23 N.E. 581 |
| Parties | ALLIN v. CONNECTICUT RIVER LUMBER CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.N. Allin and G.L. Mayberry, for plaintiff.
Ide & Stafford and H.H. Wardwell, for defendants.
It is not denied that trespass quare clausum fregit is a local action, and that at common law the courts of this commonwealth have no jurisdiction of trespass upon land in another state or county. The objection is not that an action of which the court has jurisdiction is brought in the wrong county, but that the court has not jurisdiction of the cause of action. Briggs v. Bank, 5 Mass. 94; Rogers v Woodbury, 15 Pick. 156; Clark v. Scudder, 6 Gray, 122; Lawrence v. Smith, 5 Mass. 362; Niles v. Howe, 57 Vt. 388; Watts v. Kinney, 6 Hill, 82.
It is claimed that the courts of this commonwealth are given jurisdiction of the subject-matter of the suit by Pub.St. c 183, § 1, which provides that all personal actions, except certain named, may be commenced by trustee process; and section 3, which provides that trustee writs shall be returnable in the county in which the trustee lives or has his usual place of business. Trespass quare clausum is a personal action, and may be commenced by trustee process, under the first section of this statute. Way v. Dame, 11 Allen, 357; Wilder v. Bailey, 3 Mass. 289, 291. It is also a local action, and must be brought in the county where the land lies, unless when otherwise provided by statute. The effect of the third section is that when the action is commenced by trustee process it must be brought in the county of the trustee, and so far the statute modifies the common law, by which it must be brought in the county in which the land lies. The contention of the plaintiff is that the statute not only fixes the county in which the action shall be brought when it is commenced by trustee process, but gives the courts of this commonwealth jurisdiction of an action which could not have been brought in any county. It cannot be argued that the statute gives jurisdiction over trespass to land in another state only in an action commenced by trustee process, and the plaintiff is forced to contend that it gives jurisdiction over the cause of action without regard to the form of the writ; in other words, that it changes the action of trespass quare clausum, when the land lies without the jurisdiction of our courts, from a local to a transitory action. But if this is the effect of the statute, it is impossible to confine it to causes of action arising without the state. The statute makes no distinction between trespass to lands without and within the state. It includes trespass quare clausum only as it is a personal action, and requiring the action, when brought by trustee writ, to be brought in the county of the trustee, cannot make it a transitory action as to lands without, and not as to lands within, the state. There seems to be no reason for holding that the statute renders an action for trespass to lands outside the state transitory, which does not apply to an action for trespass to lands within the state.
The plain and simple meaning of the statute is that, when a party is entitled to a personal action, he may commence it by trustee process, and that actions, whether local or transitory, commenced by trustee process, shall be brought in the county in which the trustee lives. A construction is asked for it which will authorize an action to which the party was not entitled, and the logical result of which would be to change into transitory actions all local actions which can be commenced by trustee process. The statute has been in existence nearly 100 years, and we have not been referred to any authority or dictum to sustain the position of the plaintiff. On the contrary, the action of trespass quare clausum has always been...
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