Pace v. Ott

• Decision Date: 08 July 1941
• Docket Number: Case Number: 29876
• Citation: 1941 OK 245,189 Okla. 230,115 P.2d 253
• Parties: PACE et al. v. OTT et al.
• Court: Oklahoma Supreme Court

1941 OK 245

115 P.2d 253

189 Okla. 230

PACE et al. v. OTT et al.

Case Number: 29876

Supreme Court of Oklahoma

Decided: July 8, 1941

Syllabus

¶0 1. VENUE--Action for damage to realty transitory rather than local.

An action for damage to real estate in which the title is not directly drawn in question is a transitory rather than a local one under the venue statutes.

2. SAME--Venue of transitory action in county where defendants reside or may be summoned.

Where an action is a transitory one, the proper venue is in the county where the defendants or some of them reside or may be summoned.

3. DAMAGES--Action by landowners to recover for injuries to trees and grassLack of evidence as to value of premises before or after injury--Defendants entitled to have their demurrer to evidence sustained or to have verdict directed in their favor.

In an action for the destruction and injury of growing trees and grass brought by the owners of the land on which the same are located in which no evidence is offered as to the value of the premises before or after the injury, a demurrer to such evidence should be sustained, or failing to do so, verdict should be directed in favor of the defendants on timely motion therefor.

4. APPEAL AND ERROR--Reversal where verdict unsupported by competent evidence.

Verdict of a jury unsupported by any competent evidence and which, in part, rests upon supposition, speculation, and surmise, will not be permitted to stand.

Appeal from District Court, Stephens County; Cham Jones, Judge.

Action to recover damages for destruction and injury to growing trees and grass and loss of milk supply brought by Georgia E. Ott et al. against George Pace et al. Verdict and judgment for the plaintiffs, and defendants appeal. Reversed, with directions.

S. H. Singleton, of Oklahoma City, and Brown & Cund, of Duncan, for plaintiffs in error.

H. B. Lockett, of Duncan, for defendants in error.

PER CURIAM.

¶1 The defendants in error, hereinafter referred to as plaintiffs, instituted this action in the district court of Jefferson county against the plaintiffs in error, hereinafter referred to as defendants, and others not here involved, to recover damages alleged to have been sustained as the result of pollution of land in Stephens county by oil and salt water. The specific items of damage claimed were the destruction and injury of growing trees and grass and a decrease in milk production as a consequence of pollution of a stream which was used to water cattle. The defendants by special appearance and motion to dismiss challenged the venue, and when these were overruled, saved proper exceptions and filed demurrers, but without obtaining a ruling thereon thereafter filed answers which consisted of a general denial, a plea of contributory negligence, and a plea in the nature of a special demurrer. The plaintiffs effected a settlement with the other parties involved and dismissed the action as to them. Thereupon the defendants moved to dismiss the cause as against them, and when this was overruled, proceeded to trial before a jury. The defendants demurred to the evidence of plaintiffs and at the close of all of the evidence moved for directed verdict, and saved their exceptions to the action of the court in denying each of said motions. The jury returned a verdict in favor of the plaintiffs and assessed their recovery at the sum of $600. Motion for new trial was overruled, and defendants have perfected this appeal.

¶2 The defendants assign 17 specifications of error, which they present and discuss under eight propositions. It will not be necessary to discuss each of these contentions in detail for the reasons hereinafter appearing.

¶3 We are first called upon to determine whether the action of plaintiffs was a local rather than a transitory one and therefore one which had to be brought in Stephens county, and if the action was a transitory one, then whether the action was properly brought in Jefferson county. As said in the case of Mills v. District Court of Lincoln County, 187 Okla. 247, 102 P.2d 589:

"The distinction between local and transitory actions, where title to real estate is involved, is generally recognized. Where the title will be directly affected by the judgment of the court, the action is local, and venue is properly laid in the county where the land lies; but when the title is only incidentally affected, or the relief as to it is incidental to the main controversy or primary purpose of the action, the action is transitory, and the proper venue is the county wherein the defendant resides or may be summoned. Myers v. Garland, 122 Okla. 71, 251 P. 34; Little Nick Oil Co. v. District Judge, 182 Okla. 94, 76 P.2d 379; Le Breton v. Superior Court, 66 Cal. 27, 4 P. 777; Rossi v. Caire, 174 Cal. 74, 161 P. 1161; State v. Superior Court of King County, 7 Wash. 306, 34 P. 1103; Zane v. Vawter, 102 Kan. 887, 172 P. 37; State ex rel. v. District Court, 120 Minn. 99, 139 N. W. 135; Carpenter v. Strange, 141 U. S. 87, 11 S. Ct. 960, 966; Massie v. Watts, 6 Cranch (U. S.) 160; Bancroft, Code Practices & Remedies, sec. 982, Supp.; 27 R.C.L. 794, sec. 15; 67 C. J. 24; 67 C. J. 52, sec. 65."

¶4 The action of the plaintiffs was one to recover for damages done to land which belonged to them and was not one to recover real estate nor any interest therein and therefore did not come within the provisions of subdivision 1, of section 109, O. S. 1931, 12 Okla. St. Ann. § 131. See Dunn & Gilliam v. District Court, 35 Okla. 38, 128 P. 114; Harwell v. Wood, 98...