Little v. Chicago, St. Paul, Minneapolis & Omaha Railway Company
| Decision Date | 08 June 1896 |
| Docket Number | 9825--(39) |
| Citation | 67 N.W. 846,65 Minn. 48 |
| Parties | REUBEN F. LITTLE v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county. The complaint alleged that plaintiff was the owner of certain lands in Polk county, Wisconsin, adjacent to defendant's railway, and of certain personal property thereon, and that defendant while running its train past said land, by its negligence set a fire which damaged the land and burned the personal property. Defendant answered on the merits, and also in the seventh paragraph of the answer alleged that the court had not jurisdiction because the legislature of Wisconsin, prior to the time at which the alleged damages arose, enacted that all actions for injury to real property should be tried within the county in which the subject of the action is situate. Plaintiff demurred to the seventh paragraph of the answer. It was stipulated that for the purpose of the demurrer the action should be treated as if it were solely for the recovery of injuries to real property in Wisconsin. From an order overruling the demurrer on the ground that the complaint did not state a cause of action, (Brill, J.) plaintiff appealed. Reversed.
Order reversed.
Henry C. James, for appellant.
The court had jurisdiction of the subject-matter. Const. art. 1 § 8; art. 6, §§ 1, 5; Agin v Heyward, 6 Minn. 53 (110); Southern Minn. R. Co. v. Stoddard, 6 Minn. 92 (150); Armendiaz v. Stillman, 54 Tex. 623; Genin v. Grier, 10 Ohio 209; Home Ins. Co. v. Pennsylvania R. Co., 11 Hun, 182; Barney v. Burstenbinder, 7 Lans. 210. See 2 Smith, Lead. Cas. (9th Ed.) 916, 939, 970; Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,411, per Marshall, C. J.
L. K. Luse and Thomas Wilson, for respondent.
The constitutional provision is to be read in the light of the common law rules in force when it was adopted. 3 Am. & Eng. Enc. Law, 680; St. Paul & S. C. R. Co. v. Gardner, 19 Minn. 99 (132); Mead v. Walker, 17 Wis. 189; County Board of Dane v. Dunning, 20 Wis. 210; Whallon v. Bancroft, 4 Minn. 70 (109). Prior to the adoption of the state constitution an action for injury to land located in another state could not be maintained here. Watt's Admrs. v. Kinney, 23 Wend. 484; American U. Tel. Co. v. Middleton, 80 N.Y. 408; Cragin v. Lovell, 88 N.Y. 258; Dodge v. Colby, 108 N.Y. 445, 15 N.E. 703; Allin v. Connecticut R. L. Co., 150 Mass. 560, 23 N.E. 581; Champion v. Doughty, 18 N.J.L. 3; Deacon v. Shreve, 23 N.J.L. 204; Bettys v. Milwaukee & St. P. Ry. Co., 37 Wis. 323; Mathie v. McIntosh, 40 Wis. 120; Brown v. Irwin, 47 Kan. 50, 27 P. 184; Thayer v. Brooks, 17 Ohio 489; Bruins v. Bruins, 55 Wis. 548, 13 N.W. 542; Eachus v. Trustees Ill. & M. Canal, 17 Ill. 534; Cooley, Torts, 471; Du Breuil v. Pennsylvania Co., 130 Ind. 137, 29 N.E. 909.
OPINION
This action was brought to recover damages for injuries to real estate situated in Wisconsin, caused by the negligence of the defendant. The question presented is, can the courts of this state take cognizance of actions to recover damages to real estate lying without the state; in other words, is such an action local or transitory in its nature?
The history of the progress of the English common law respecting the locality of actions will aid in determining how this question ought to be decided on principle. Originally, all actions were local. This arose out of the constitution of the old jury, who were but witnesses to prove or disprove the allegations of the parties, and hence every case had to be tried by a jury of the vicinage, who were presumed to have personal knowledge of the parties as well as of the facts. But, as circumstances and conditions changed, the courts modified the rule in fact, although not in form. For that purpose they invented a fiction by which a party was permitted to allege, under a videlicet, that the place where the contract was made or the transaction occurred was in any county in England. The courts took upon themselves to determine when this fictitious averment should and when it should not be traversable. They would hold it not traversable for the purpose of defeating an action it was invented to sustain, but always traversable for the purpose of contesting a jurisdiction not intended to be protected by the fiction. Those actions in which it was held not traversable came to be known as transitory, and those in which it was held traversable as local, actions. Actions for personal torts, wherever committed, and upon contracts (including those respecting lands), wherever executed, were deemed transitory, and might be brought wherever the defendant could be found.
As respects actions for injuries to real property, we cannot discover that it was definitely settled in England to which class they belonged prior to the American Revolution. As late as 1774, in the leading case of Mostyn v. Fabrigas, 1 Cowp. 161, 2 Smith, Lead. Cas. (9th Ed.) 916, Lord Mansfield, who did more than any other jurist to brush away those mere technicalities which had so long obstructed the course of justice, referred to two cases in which he had held that actions would lie in England for injuries to real estate situated abroad. In that same case he said: [2] "Can it be doubted that actions may be maintained here, not only upon contracts, which follow the persons, but for injuries done by subject to subject, especially for injuries where the whole that is prayed is a reparation in damages or satisfaction to be made by process against the person or his effects within the jurisdiction of the court?" While all that is there said as to actions for injuries to real property is obiter, yet it clearly indicates the views of that great jurist on the subject. And we cannot discover that it was fully settled in England that actions for injuries to lands were local until the decision of Doulson v. Matthews, 4 Term R. 503, in 1792, -- 16 years after the declaration of American independence. The courts of England seem to have finally settled down upon the rule that an action is transitory where the transaction on which it is founded might have taken place anywhere; but is local when the transaction is necessarily local, -- that is, could only have happened in a particular place. As an injury to land can only be committed where the land lies, it followed that, according to this test, actions for such injuries were held to be local. As the distinction between local and transitory venues was abolished by the judicature act of 1873, [3] we infer that actions for injuries to lands lying abroad may now be maintained in England.
It is somewhat surprising that the American courts have generally given more weight to the English decisions on the subject rendered after the Revolution than to those rendered before, and hence have almost universally held that actions for injuries to lands are local. In the leading case of Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,411, which has done more than any other to mold the law on the subject in this country, Chief Justice Marshall argued against the rule, showing that it was merely technical, founded on no sound principle, and often defeated justice; but concluded that it was so thoroughly established by authority that he was not at liberty to disregard it. But so unsatisfactory and unreasonable is the rule that since that time it has, in a number of states, been changed by statute, and in others the courts have frequently evaded it by metaphysical distinctions in order to prevent a miscarriage of justice. Chief Justice Marshall's own state of Virginia changed the rule by statute as early as 1819. Some courts have made a subtle distinction between faults of omission and of commission. Thus in Titus v. Inhabitants of Frankfort, 15 Me. 89, which was an action against a town for damages sustained by reason of defects in a highway, it was held that, while highways must be local, the neglect of the defendant to do its duty, being a mere nonfeasance, was transitory. It has also been held that where trespass upon land is followed by the asportation of timber severed from the land, if the plaintiff waives the original trespass, and sues simply for the conversion of the property so carried away, the action would become transitory. American U. Tel. Co. v. Middleton, 80 N.Y. 408; Whidden v. Seelye, 40 Me. 247. Again, it has been sometimes held that an action for injuries to real estate is transitory where the gravamen of the action is negligence, -- as for negligently setting fire to the plaintiff's premises. Home Ins. Co. v. Pennsylvania R. Co., 11 Hun 182; Barney v. Burstenbinder, 7 Lans. 210. In Ohio the rule has been repudiated, at least as to causes of action arising within the state, as being wholly unsuited to their condition, because under their judicial system it would result in many cases in a total denial of justice. Genin v. Grier, 10 Ohio 209.
Almost every court or judge who has ever discussed the question has criticized or condemned the rule as technical, wrong on principle and often resulting in a total denial of justice, and yet has considered himself bound to adhere to it under the doctrine of stare decisis.
An action for damages for injuries to real property is on principle just as transitory in its nature as one on contract or for a tort committed on the person or personal property. The reparation is purely personal, and for damages. Such an action is purely personal, and in no sense real. Every argument founded on practical considerations against entertaining jurisdiction of actions for injuries to lands lying in another state could be urged as to actions on contracts executed, or for personal torts committed, out of the state, at...
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