Ex parte Teledyne Exploration

• Decision Date: 05 August 1983
• Citation: 436 So.2d 880
• Parties: Ex parte TELEDYNE EXPLORATION. (Re M.N. JERNIGAN, Jr. and V.E. Carter v. TELEDYNE EXPLORATION). 82-8.
• Court: Alabama Supreme Court

Page 880

436 So.2d 880

Ex parte TELEDYNE EXPLORATION.

(Re M.N. JERNIGAN, Jr. and V.E. Carter v. TELEDYNE EXPLORATION).

82-8.

Supreme Court of Alabama.

Aug. 5, 1983.

John Thaddeus Moore of Otts & Moore, Brewton, for petitioner.

James E. Hart, Jr., Brewton, for respondent.

FAULKNER, Justice.

The plaintiffs, Jernigan and Carter, were joint owners of a parcel of real estate located about eight miles south of the Alabama border in Florida. Teledyne Exploration was a foreign corporation qualified to do business in Alabama. A representative of Teledyne at Teledyne's office in Foley, Alabama, called Jernigan at his home in Brewton, Alabama, to request that Teledyne be allowed to enter the property in Florida in order to conduct tests there in connection with oil and gas exploration. During a subsequent telephone conversation an agreement was reached whereby Teledyne was allowed to conduct the seismic tests. The plaintiffs alleged that in exchange for their permission to conduct the tests on their property Teledyne agreed to pay the plaintiffs "the same tree damage as Container Corporation" was paid when similar tests were conducted on its property.

Following the completion of the tests a dispute arose as to the amount of damages owed by Teledyne to the plaintiffs. The original complaint alleged negligence in the conducting of the seismic operations. The trial court dismissed the complaint on the grounds that it lacked subject matter jurisdiction, the court being of the opinion that the action for damages ex delicto to the real property in Florida was not transitory. The plaintiffs then amended their complaint to allege a breach of contract based on the telephone conversations which took place in Alabama. In a lengthy order citing its inability to compel the appearance of witnesses to the alleged damage in Florida, the trial court dismissed plaintiffs' amended complaint. The Court of Civil Appeals reversed. We granted certiorari to review the decision of the Court of Civil Appeals that the Alabama courts may exercise subject matter jurisdiction.

As a general rule courts have jurisdiction over a "transitory" action irrespective of where the cause of action arose, so long as the court has personal jurisdiction over the defendant. "Local" actions, however, must be brought in the jurisdiction where the action arose. The distinction between transitory and local actions in American jurisprudence originated in Livingston v. Jefferson, 1 Brock 203, Fed.Cas. No. 8411 (1811). Livingston brought suit against Thomas Jefferson for trespass by Jefferson's agents on land in Louisiana. Chief Justice Marshall, sitting as a circuit court justice, reluctantly adopted the rule of English common law whereby courts took jurisdiction over actions based on personal torts or contracts wherever service was perfected on the defendant, but exercised jurisdiction over actions for trespass to real property only when the property was located within the court's jurisdiction. See Annot., 42 A.L.R. 196, 200-201 (1926). The rule was a vestige of the practice in England of selecting a jury from the community where the action arose on the assumption that the jury would be familiar with the parties and the facts of the case. Woolf v. McGaugh, 175 Ala. 299, 57 So. 754, 755 (1911). Although the rule has been abrogated or abolished in some jurisdictions, actions involving title to real estate, actions for injunctive relief to stop injury to real estate, or actions seeking damages for trespass or waste are usually classed as "local." French v. Clinchfield Coal Co., 407 F.Supp. 13, 16 n. 7 (Del.1976) (citing numerous cases). See also, Annot., 30 A.L.R.2d 1219 (1953); Annot., 42 A.L.R. 196 (1926). Actions based on contracts, however, are transitory even where real property is involved. See 20 Am.Jur.2d Courts § 127 (1965).

The rule was criticized in the decision which adopted it, Livingston, supra, and was abolished by statute in England in 1873. Little v. Chicago, St. P., M.O. Ry. Co., 65 Minn. 48, 67 N.W. 846, 847 (1896). Much of the criticism directed toward the rule involved situations where the court with exclusive jurisdiction over the subject matter could not obtain jurisdiction over the defendant. In Reasor Hill Corp. v. Harrison, 220 Ark. 521, 249 S.W.2d 994 (1952), the owner of real property in Missouri whose cotton crop had been damaged when sprayed with insecticide sought to maintain a claim against the manufacturer of the insecticide, an Arkansas corporation which was not amenable to service of process in Missouri. In ruling that the Arkansas court should entertain the action for damages to real estate in Missouri, the Supreme Court of Arkansas stated:

"The truth is that the majority rule has no basis in logic or equity and rests solely upon English cases that were decided before America was discovered and in circumstances that are not even comparable to those existing in our Union. Basic principles of justice demand that wrongs should not go unredressed. Our own Bill of Rights puts the matter well enough: 'Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character.' Ark. Const., Art. 2, § 13. If Barton has been wronged he should have a remedy; to deny it is to encourage skepticism as to the ability of the courts to do their duty. Under the majority rule we should have to tell Barton that he would have been much better off had the petitioner stolen his cotton outright instead of merely damaging it. And the only reason we could give for this unfortunate situation would be that English juries in the thirteenth century were expected to have personal knowledge of the disputes presented to them. We prefer to afford this litigant his day in court."

Reasor-Hill Corp., supra, 249 S.W.2d at 996.

The defendant relied primarily on Howard v. Ingersoll, 17 Ala. 780 (1850), to support its position that the action was local. In that case the plaintiff's mill on the Chattahoochie River was damaged when the defendant built a dam downstream. The mill was located between the low and high water marks on the west side of the river. The case turned on the issue of whether the mill was located in Alabama or in Georgia. This court stated that if the mill was situated in...