Armendiaz v. Stillman

• Decision Date: 31 March 1881
• Docket Number: Case No. 1355.
• Parties: EUGENIA ARMENDIAZ v. JAMES STILLMAN ET AL.
• Court: Texas Supreme Court

54 Tex. 623

EUGENIA ARMENDIAZ

v.JAMES STILLMAN ET AL.

Case No. 1355.

Supreme Court of Texas.

Mar. 31, 1881.

APPEAL from Cameron. Tried below before the Hon. John C. Russell.

The opinion states the case.

Wm. H. Russell and John Ireland, for appellant.

Powers & Wells, for appellees.--The plaintiff assumed that his action herein is brought under section 8 of article 1198, Revised Statutes, in lieu of section 13 of the same article. And he seems to assume also, that the term “““trespass” in said 8th section must refer to real estate. In these propositions we think he is plainly mistaken. The word “trespass” in section 8 of said article, we submit, refers to acts of personal trespass or wrongs, and not to real estate, because real estate is not referred to in said section. Real estate is only referred to in said article, sections 10, 11, 12 and 13.

Judge Cooley in his Law on Torts, p. 471, says this is the distinction: “If the cause of action is one that might have arisen anywhere, then it is transitory; but if it could only have arisen in one place, then it is local; therefore, while an action of trespass to the person, or for the conversion of goods, is transitory, action for flowing lands is local, because they can be flooded only where they are. For the most part, the actions which are local are those brought for the recovery of real estate, or for injuries thereto or to easements.”

We have adopted this definition of the distinction between transitory and local actions, because so simple and of such high authority.

A most notable example of a transitory action, and one founded upon a personal trespass, was the case of Mostyn v. Fabrigas, Cowp., 161; and also reported in 1 Smith's Leading Cases, p. 340, etc.

The defendants insist that this cause of action is founded upon section 13 article of 1198 of the Revised Statutes, because this section provides, “that suits for the recovery of lands or damages thereto, suits to remove incumbrances 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.”

Thus we see that the provisions of this section, in connection with sections 10, 11 and 12, embrace all the common law provisions concerning local actions as affecting real estate, and that damage to real estate, and to prevent or stay waste on lands, are actions that must be brought in the county where the lands lie.

And we submit that this action is not only one for damages to real estate, but to prevent and stay waste; else why ask for the injunction? Art. 1198, Revised Statutes of Texas, and especially §§ 8, 10, 11, 12 and 13 of the same; art. 3128, Revised Statutes, introducing the common law of England except as modified by statute; Gould's Pl., pp. 116, 117, and authorities cited; 1 Chitty's Pl., pp. 267-9, and authorities cited; Stephen on Pl., p. 286, top; Id., p. 288; 1 Bac. Ab., Bouvier's edition (B), Actions Local and Transitory, p. 82, and authorities cited; Story on Conflict of Laws, § 554.

Each state regulates its own jurisdiction; and if the position of the plaintiff were correct, what would become of the provisions of the Texas statute, that we have before examined, which provide that actions for damages to real estate, and to prevent or stay waste on lands, must be brought in the county where the lands lie? How can the plaintiff work up a fiction that will transfer lands in Mexico into Cameron county?

Chief Justice Marshall, in the case of Livingston v. Jefferson, 1 Brock., 203, which was an action for trespass upon land charged against the defendant to have been committed in Louisiana, decided that by the laws of Virginia, where the suit was brought, actions for damages to real estate committed in another state would not lie in the courts of Virginia. It would seem, then, that the Virginia and Texas statutes are identical as to this provision. And he placed the question, also, upon the common law provision concerning local and transitory actions. In the course of his reasoning, he adverted to the necessity, if this extra, territorial-jurisdiction, as claimed, were conceded, of knowing, and the difficulty of knowing the laws of a foreign country, so as to apply them properly to the questions of tenure of real estate in foreign states and countries. And it cannot be doubted that the exercise of such jurisdiction would be attended with infinite perplexities and difficulties.

The cases cited by the plaintiff as examples of the exercise of the jurisdiction claimed, are questions arising between the states of our Union, and in no wise affecting foreign countries.

In the case of Rundle v. Delaware & Raritan Canal, 1 Wallace, Jr., 275, when Judge Grier exercised the jurisdiction claimed, so far as the states of New Jersey and Pennsylvania were concerned, it must be presumed that the laws of New Jersey permitted this, or at least that the jurisdiction was not prohibited as in Virginia and Texas.

That jurisdiction in this regard is the creature of the state, must be inferred from the diversity of the cases decided in several of them. Cooley on Torts, p. 471; Id., 472, and notes 1, 2, 3, 5;McKenna v. Fisk, 1 How., 248.

MOORE, CHIEF JUSTICE.

This is an action brought by Eugenia Armendiaz, a citizen of Cameron county, state of Texas, in the district court of that county, against the appellees, James Stillman, a citizen of the city and state of New York, but the owner of real estate in Cameron county, and Thomas Carson and A. M. Field, both of whom are resident citizens of said county of Cameron, for the recovery of damages for wrongs and injuries charged to have been done him by appellees, by means of an obstruction alleged to have by them wrongfully placed in the water bed of the Rio Grande river on the Texas side thereof in said county of Cameron, so as to throw the current of said river against and upon the land of appellant, situated on the south or Mexican side of said river, thereby causing the destruction and washing away of said land, pleasure garden or park, ornamental trees, stables and other houses on said land, and for money expended to protect his property from total destruction which would otherwise have been caused thereby, and for the loss of trade by reason of the injury and destruction of his property, etc.

To this petition appellees answered by general and special exceptions, and pleas to merits. On the case coming to trial, appellees' exceptions were sustained, and the cause dismissed by the court for want of jurisdiction. The correctness or error of this judgment is the only question presented in the record for our consideration.

The grounds relied upon by appellees to maintain the judgment are these: 1st. The action is for the recovery of damages to land in the republic of Mexico, and not the county of Cameron, in which the suit is brought. Whereas, as they maintain, by section 13 of article 1198, such a suit can only be brought in the county in which the land for injury to which damage is claimed, or some part of it, is situated. Evidently this section has reference, as is apparent from its language, to actions for damages to land in some county in Texas. And the only weight which can be given to it is, that it leads to the conclusion, unless this is done in some other clause or section of the statute, that provision has not been made by the legislature for suits in this state for damage to land in a foreign state or country, to which we will advert hereafter 2d. The action brought by appellant, by the rules and principles of common law, is local and not transitory, and can only be maintained in a court having jurisdiction of such cases in the locality where the land is situated.

In support of this proposition, we are referred to the opinion of Chief Justice Marshall, in the case of Livingston v. Jefferson (1 Brock., 203), “from whose authority no man will lightly dissent,” which holds that upon technical common law grounds, which, however, the great chief justice himself confessedly deprecates, where the damage, and the act causing it, both take place beyond the jurisdiction of the court in which the suit is brought, the action cannot be maintained. No doubt other cases to the same effect can be readily cited. But such is not this case. Here the nuisance or act causing the damage was committed in Cameron county, where the suit is brought, and not in Mexico, where the damage was sustained.

In such a case, even by the technical rule of common law, the action may be maintained either in the jurisdiction where the act was committed or in that in which the injury was sustained.

In the case of Thayer v. Brooks, says the supreme court of Ohio: “The act was done in Pennsylvania; the injury which was occasioned by the act was sustained in Ohio. In such a case it is believed the suit would lie in either state. Where an injury has been caused by an act done in one county to land, etc., situated in another, the...