Archibald v. Miss. & Tenn. R. R. Co
Citation | 6 So. 238,66 Miss. 424 |
Parties | D. H. ARCHIBALD v. MISS. & TENN. R. R. Co |
Decision Date | 06 May 1889 |
Court | United States State Supreme Court of Mississippi |
April 1889
FROM the circuit court of Yalobusha county, HON. W. M. ROGERS Judge.
The facts are stated in the opinion.
Reversed and remanded.
Sullivan & Whitfield, for appellants.
This is a personal, not a real action. It is not a suit for land, but to recover damages for flooding land. It is not a local action under code 1880, § 1498. Even in the two actions made local by said statute, if the land is in two or more counties, the residence of the defendant, if in one of them controls.
For the discussion of the subject of the venue in suits against railroads, see 1 Rorer on Railroads 671, and eases cited, and, as decisive of this case, Ga. R. R. & Banking Co. v. Kirkpatrick, 35 Ga. 144. That case decides that the statute, not the common law, controls. See also 1 Rorer on Railroads 672; Baldwin v. R. R. Co., 5 Iowa 518; Graham v. R. B. Co., 64 N.C. 631.
W. P. & J. B. Harris, for appellee.
This is an action of trespass on land, and, under code 1880, § 1498, must be brought in the county where the land lies. The prior law said action "quare clausum fregit;" the code of 1880 says, instead, "actions of trespass on land." The form of the declaration is not assumpsit but trespass, following the form prescribed by code, § 1543.
If this action can be brought out of the county of the land, ejectment may be so brought.
This is not a cause arising "from the business of a railroad company" in the sense of the term as used in code, § 1542. The phrase has reference to matters growing out of transportation, running of trains, and the like. Such is the business of railroads as contemplated by the statute. Is the store-house a part of the mercantile business? Would injury to adjoining land abused in the course of constructing a store-house be considered an injury arising from the mercantile business? We think not.
The suit was brought by appellants in Yalobusha county, to recover damages for injury to land situated in Panola county caused by the land being overflowed on account of the manner in which the track of the railroad company had been constructed along the line of the land. The cause was dismissed on motion of appellee, on the ground that the land injured was not located in the county where the suit was brought, and the court was therefore without...
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