Hill v. Nelson
| Citation | 70 N.J.L. 376,57 A. 411 |
| Parties | HILL v. NELSON et al. |
| Decision Date | 29 February 1904 |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Action by Charles C. Hill against Alfred B. Nelson and the River & Harbor improvement Company. Demurrer to plea overruled.
Argued November term, 1903, before GUMMERE, C. J. and HENDRICKSON, DIXON, and SWAYZE, JJ.
Edwin R. Walker, for plaintiff.
Linton Satterth wait and Charles V. D. Joline, for defendants.
The first count of the declaration alleges that the plaintiff was possessed of a certain several fishery, under the statutes of Pennsylvania, situate in the Delaware river, opposite to the easterly bank of his farm in Bucks county, and that the defendants with force and arms broke and entered that fishery, and deposited large quantities of earth upon the land under the water of the river, within the bounds of hisfishery, and thereby the fishery was obstructed, and the plaintiff was deprived of its use. The second count is in substance the same, except that it alleges possession by the plaintiff of a "certain pool and fishery." For the wrong thus perpetrated the plaintiff claims damages. To this declaration the defendants plead that the supposed causes of action accrued to the plaintiff out of the jurisdiction of this court in the county of Bucks and state of Pennsylvania, and therefore they pray judgment whether the court can or will take further cognizance of the action. Whereupon the plaintiff demurs.
In the brief submitted on behalf of the plaintiff it is stated that the only question is: "Is the action local or transitory?" in effect conceding that, if it be local, the plea is valid. The decision of this question does not seem doubtful. A several fishery is necessarily attached to land, and belongs to the owner of the lands or his grantees. 2 Bl. Comm. 39. It is as immovable as the land itself. The same thing is true of "a pool and fishery." Since, therefore, the property injured by the act of the defendants had a certain and fixed location, so the wrong done was necessarily local. The act charging the depositing of earth on the land under the water in which the plaintiff had his right of fishery is not legally distinguishable, as to locality, from any other trespass upon the land. According to all the authorities, actions for such injuries are local.
But the more important question discussed in the oral argument, and really involved in the demurrer, is whether the cause of action being local, and having arisen outside of New Jersey, this court has jurisdiction of a suit which seeks only damages for the tort in reaching our conclusion on this question, we have not been unmindful of the fact that an action might be brought over which we would undoubtedly have jurisdiction, and which yet might require a decision of every point possible to be raised in this suit; for example, an action upon a contract, whereby the defendants had agreed to indemnify the plaintiff for this injury in case he proved himself entitled to the fishery. Nor do we overlook the possibility that, if we have no jurisdiction, the plaintiff may be remediless, since elsewhere no court may be able to reach the defendants or their property. Nevertheless we are obliged to decide the matter according to the prescriptions of the common law, which in this respect have not been changed by constitutional or legislative provisions. On examining the subject we find an inveterate and imperative rule of the common law, that, if a local cause of action arises outside of the realm, the law courts have no jurisdiction over it Originally the pleader was required to state truly the place where each fact asserted by him occurred, and, if issue was joined thereon, the fact was tried by a jury summoned from that neighborhood or venue. Afterwards, when juries were no longer expected to decide issues of fact upon their own knowledge, a fictitious venue was in some actions permitted, and the pleader assigned to his facts, under a videlicet, the place in which he desired the trial to be held. These actions were then styled "transitory." But this fiction was not allowed...
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Taylor v. Sommers Bros. Match Co.
...distinction between an action of trespass quare clausam fregit and an action of trespass on the case. The court relied upon Hill v. Nelson, 70 N.J.L. 376, 57 A. 411, which an action for trespass quare clausam fregit, and upon Doherty v. Catskill Cement Co., 72 N.J.L. 315, 65 A. 508, in whic......
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Anderson v. Del., L. & W. R. Co.
...870 (Sup.Ct.N.J.1903, Hendrickson, J.); Martin v. Lehigh Valley R. R., 114 N.J.L. 243, 176 A. 665 (1935, Perskie, J.); cf. Hill v. Nelson, 70 N.J.L. 376, 57 A. 411 (Sup. Ct. 1922 Dixon, J.), involving a local It is contended, however, for the reasons stated, that our courts have the power t......
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...v. Irwin, 47 Kan. 50, 27 P. 184; Morris v. Mo. P. Ry. Co., 78 Tex. 17, 14 S.W. 228, 9 L. R. A. 349, 22 Am. St. Rep. 17; Hill v. Nelson, 70 N. J. Law, 376, 57 A. 411; Karr v. N.Y. J. F. Co., 78 N. J. Law, 198, 73 132; Allin v. Connecticut River Lumber Co., 150 Mass. 560, 23 N.E. 581, 6 L. R.......
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