Potomac Milling & Ice Co. v. Baltimore & O.R. Co.

• Decision Date: 02 November 1914
• Citation: 217 F. 665
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: POTOMAC MILLING & ICE CO. v. BALTIMORE & O.R. CO.

217 F. 665

POTOMAC MILLING & ICE CO. v. BALTIMORE & O.R. CO.

United States District Court, D. Maryland.

November 2, 1914

Walter C. Capper, of Cumberland, Md., Harry G. Fisher, of Keyser, W Va., and Albert A. Doub, of Cumberland, Md., for plaintiff.

George A. Pearre, of Cumberland, Md., for defendant.

ROSE District Judge.

The plaintiff is the owner of land in West Virginia. Its declaration alleges that some of the buildings on such land together with various articles of personal property therein were destroyed by fire which had been caused by sparks which defendant had negligently permitted to escape from one of its locomotives. To recover for the damage thus done this suit is brought.

Defendant has pleaded that the land in question is in Mineral county in the state of West Virginia, and that this court has, therefore, no jurisdiction in the premises. To this plea the plaintiff demurs. As the declaration states that personal property of value belonging to plaintiff was destroyed, the plea does not meet the entire case, and the demurrer to it will, therefore, on that ground have to be sustained. The parties have, however, fully argued the question as to whether this court has jurisdiction to entertain the suit, so far as it seeks to recover for damage to the real property; and as that question will have to be decided at some stage of the proceedings, it might as well be passed on now.

Defendant contends that a suit for injury to real property is a purely local action and cannot be maintained in any court whose writ will not run into the county in which the land lies. When an action of trespass was a semi-criminal proceeding, there was good reason to require that redress for it be sought where the wrong was done. Any proceeding which may require the officers of the court to put somebody either in or out of possession of the land must necessarily be instituted in a tribunal which can give such relief. Something, perhaps, may be said for denying to other than local courts jurisdiction over any action in which the title to land or the right to its possession is one of the questions in dispute. The rule invoked by the defendant, when extended beyond the limits named, is purely arbitrary.

In this particular case the fire which burned the buildings consumed personal property. There is no question that this court may properly entertain a suit to recover for the value of the latter.

The defendant's responsibility for the damage to buildings will depend on precisely the same state of facts as that which will determine its responsibility for the destruction of the chattels. In short, the substantial issues involved and the testimony by which they are to be supported will be the same with reference to the real and the personal property. If the defendant is right, there will be cases in which it will be impossible for a deeply wronged landowner to secure redress. The inconvenience and occasional injustice which the rule relied on here may cause has led a number of states to restrict its application or to abrogate it altogether.

In West Virginia it is provided that any action at law, except an action of ejectment or unlawful detainer, may be brought where any of the defendants reside. Code W.Va. c. 123, Sec. 1 (sec. 4734).

The only legislation in Maryland upon the subject is section 148 of article 75 of Bagby's Code, to the effect that if any trespass shall be committed on any real property, and the person committing the same shall remove from the county where such property may lie, or cannot be found in such county, such trespasser may be sued in any county where he may be found. There is in this case, of course, no suggestion that the defendant, the Baltimore & Ohio Railroad Company, has removed from Mineral county, or that it cannot be found therein. It is clearly settled that on this question the law of the forum governs. Huntington v. Attrill, 146 U.S. 669, 13 Sup.Ct. 224, 36 L.Ed. 1123; Peyton v. Desmond, 129 F. 1, 63 C.C.A. 651.

The Court of Appeals of Maryland does not appear ever to have had before it a case in which it was sought to recover in the courts of this state for an injury done to real property in another; but the distinction between local and transitory actions has been repeatedly...