Morris v. Missouri Pac. Ry. Co.

• Decision Date: 17 June 1890
• Citation: 14 S.W. 228
• Parties: MORRIS v. MISSOURI PAC. RY. CO.
• Court: Texas Supreme Court

14 S.W. 228

MORRIS v. MISSOURI PAC. RY. CO.

Supreme Court of Texas.

June 17, 1890.

Commissioners' decision. Appeal from district court, Grayson county.

Hare, Edmundson & Hare, for appellant. R. C. Foster and A. E. Wilkinson, for appellee.

HOBBY, J.

The plaintiff in the court below (who is the appellant here) instituted this action for the recovery of damages for injuries to certain real property in the Choctaw nation of the Indian Territory, which he alleged were caused by defendant's negligence in permitting fire to be communicated thereto. Plaintiff's rights in the property grew out of the fact that he had acquired, by marriage with an Indian woman, membership in the said Choctaw tribe. Plaintiff resided in said nation, and defendant is a Missouri corporation, having an office and agent in the county where this suit was brought. The allegations were that under the laws of the Choctaw nation now in force, and in force at the time of said fire, plaintiff by marrying into said tribe became a member thereof, without relinquishing his rights as a citizen of the United States that under the laws of said nation marriage with a member of said tribe conferred upon the person so marrying all rights possessed and enjoyed by other members thereof; that under the laws of said nation and treaties with the United States no member of said tribe, or other person, can own lands lying in said Choctaw nation, but under the laws of said nation any member thereof, whether native born or acquiring membership by marriage, might fence and inclose all the lands he might desire, and all lands so fenced and inclosed immediately become subject to the exclusive beneficial possession and occupancy of the person so inclosing, with privilege to transfer the possession and occupancy by sale, gift, or devise; that the lands mentioned were fenced and inclosed as a pasture by plaintiff after his adoption into said tribe, and that by so fencing, inclosing, and occupying the same he became entitled to the exclusive beneficial occupancy and enjoyment thereof. He claimed damages against defendant in the sum of about $6,000 for injury by fire from defective engine in the Choctaw nation to property of which plaintiff was, under the laws of said nation, entitled to the exclusive beneficial use and possession; the damages by fire being as follows: 1,000 acres of growing grass of the value of five dollars per acre, the grass on the ground being worth two dollars per acre, and the damage to said grass for future use during the time that plaintiff would have been entitled to the same being three dollars per acre; posts destroyed. $17.20; amount paid hands for fighting fire, $21; amount paid for gathering cattle that had been scattered by the fire, $501, — in the aggregate, $5,539.20. Defendant interposed a demurrer in the nature of a plea to the jurisdiction on the ground that the cause of action was local, and not within the jurisdiction of the Texas courts; and, second, that the enforcement of the rights of plaintiff, as a member of the Choctaw tribe of Indians, was within the exclusive jurisdiction of the federal government, and not cognizable in the courts of Texas. This demurrer being sustained, plaintiff has assigned the ruling as error, and asserts, in substance, the following propositions: "That a suit lies in the Texas courts in favor of a non-resident against a non-resident corporation, having an office and agent in the county of the suit, for injury to lands beyond the limits of the state; that damages resulting from negligent burning of plaintiff's premises are transitory and actionable here so far as they embrace only expenses, as of gathering cattle or fighting fire, caused by the injury to the premises, as distinguished from injury to the premises; that members of the Indian tribes resident in the Indian Territory can sue in the courts of Texas for redress of injuries to property rights enjoyed by them as members of such tribes." Each of these propositions is controverted by appellee.

If the action brought by the plaintiff is of that class known as local actions, the well-established doctrine is that it must be brought in the county where the right of action accrued. The briefest, as well as the clearest, distinction between this class and transitory actions is thus stated: "If the cause of action be one that might have arisen anywhere, then it is transitory; if it could only have arisen in one place, then it is local. As, for example, an action of trespass to the person or for the conversion of goods is transitory. But an action for flowing particular lands is local, because the land can only be flooded where it is situated. For the most part, the local actions consist of those instituted for the recovery of real estate, or for injuries thereto, etc., for easements." Cooley, Torts, 471. That actions for trespass on lands in a foreign country cannot be sustained is settled law in...