Taylor v. Sommers Bros. Match Co.

Decision Date31 January 1922
PartiesJ. W. TAYLOR and MATTIE TAYLOR, His Wife, Respondents, v. SOMMERS BROS. MATCH COMPANY, Appellant
CourtIdaho Supreme Court


1. An action for trespass upon lands is a local action, and can only be brought within the state in which the land lies.

2. A complaint which alleges that defendant negligently caused permitted and suffered fires to originate and be kindled about its plant, and negligently permitted such fires to escape to and destroy plaintiff's growing timber on their homestead entry, and that after such destruction their homestead was worth less to the extent of the value of the timber so destroyed, states a local cause of action, and must be tried in the state where such land is situate.

3. In an action for trespass, where the principal thing is the injury to the realty, and the conversion of property wrongfully taken or destroyed is incidental only, the entire cause of action is local.

4. Actions are deemed transitory where the transactions on which they are founded might have taken place anywhere, but are local where the cause in its nature could only have arisen in one place.

5. Courts cannot by failure of the parties to raise such question acquire jurisdiction of actions that are purely local, which should have been brought elsewhere.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Action to recover damages for negligently burning timber on plaintiffs' land. Judgment for plaintiffs and defendant appeals. Reversed, with instructions to dismiss.

Reversed and remanded, with instructions.

G. H Martin, for Appellant.

There is no difference in principle between a wilful cutting and a destruction by reason of negligence. Negligent destruction does not change the right of recovery. (Knapp v Alexander-Edgar Lumber Co., 237 U.S. 162, 35 S.Ct. 515, 59 L.Ed. 895.)

Until the homestead entryman or pre-emptor has complied with the law of the United States relating to such entries and has paid the government for the land and obtained his title, he has no right or authority, either himself or through contract with others, to permit the cutting and removal of any timber from the land, except as is necessary to be cut and removed to permit of cultivation and improvements upon the land. ( Ladd v. Hawley, 57 Cal. 51; Shiver v. United States, 159 U.S. 491, 16 S.Ct. 54, 40 L.Ed. 231; Stone v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127; Union Naval Stores Co. v. United States, 240 U.S. 284, 36 S.Ct. 308, 60 L.Ed. 644.)

W. H. Plumber and E. W. Wheelan, for Respondents.

The interest of plaintiffs in the land and timber in question, by virtue of their homestead entry, and subsequent occupation and improvement of the same, authorized plaintiffs to sell the timber upon the land before the requisite improvements, and before the receipt of final certificate or patent, to carry out in good faith the acquisition and enjoyment of the homestead. (King-Ryder Lumber Co. v. Scott, 73 Ark. 329, 84 S.W. 487, 70 L. R. A. 873; United States v. Cook, 19 Wall. (U.S.) 591, 22 L.Ed. 210; Grubbs v. United States, 105 F. 314, 44 C. C. A. 513.)

LEE, J. Budge, McCarthy and Dunn, JJ., concur. RICE, C. J., Dissenting.



This action was commenced in the eighth judicial district court, in and for Bonner county, by J. W. Taylor and Mattie Taylor, his wife, to recover damages in trespass for alleged negligence of appellant corporation in causing, permitting and suffering fire to originate and be kindled upon its premises, and in negligently failing to prevent such fire from being communicated to adjoining premises, whereby timber belonging to respondents was destroyed.

The complaint alleges that on September 12, 1916, respondent J. W. Taylor made a homestead entry upon the SE. 1/4 of Sec. 24, Twp. 33 N., R. 42 E., W. M., in Pend d'Oreille county, Washington, and has ever since with his family resided upon said land and improved the same for the purpose of acquiring title from the government under the homestead laws; that there was located upon said land a large amount of timber, of the value of $ 21,250; that this homestead was situated in the vicinity of appellant's milling plant, and on or about June 16, 1918 appellant caused, permitted and suffered fires to originate and be kindled about its plant, and failed to prevent said fires from being communicated to adjacent property, and by reason of such negligence fire escaped to the lands of respondents and destroyed timber thereon belonging to them; and that after such timber had been so destroyed by fire this homestead was of less value to the extent of $ 21,250, and by reason thereof respondents were damaged in said amount.

The cause was tried by the court with a jury, and a verdict was rendered for the plaintiffs in the sum of $ 1,500, and judgment was rendered thereon against appellant, from which this appeal is taken.

A motion for nonsuit upon the ground of the insufficiency of the evidence having been overruled, after the verdict appellant moved for judgment non obstante veredicto, which was also denied. Numerous assignments of error are made, but the ones principally relied upon are that the evidence is insufficient to establish appellant's negligence in causing the destruction of this timber, and, secondly, that respondents are not entitled to recover for the loss of such timber, or any timber, on said homestead entry, for the reason that they failed to limit the allegations and proof of loss to the timber upon that portion of the land they intended to clear and cultivate in order to comply with the requirements of the homestead law and secure patent to such entry. Appellant contends that prior to patent respondents are not entitled to recover for the timber destroyed upon the other portions of the homestead, because of the paramount title thereto being in the United States.

It will be observed that this is an action for trespass upon land situate in the state of Washington, and that the negligent acts of appellant which it is alleged caused the destruction by fire of the timber were also done in the state of Washington, the premises of appellant company upon which it is charged this fire originated being located about a mile and a half southwest of respondent's homestead, so that upon the very threshold of a consideration of this appeal we are met with the question whether the courts of this state have jurisdiction to try an action of this kind, where the same is brought to recover for an injury done to lands situate in the state of Washington. If a cause of action is local, and by the great majority of the English and American decisions an action ex delicto, based upon a tort against real property is local, it cannot be maintained in any state or county other than that in which the land is located.

In Livingston v. Jefferson, 1 Brock. 203, F. Cas. No. 8411, it was held that an action for trespass committed upon lands is a local action, and the United States circuit court for the district of Virginia could not take cognizance of a trespass committed upon lands lying beyond the limits of the district, although the trespasser was a resident of Virginia. Marshall, C. J., sitting as a circuit judge, reluctantly concurred in this view, and after tracing the doctrine to its origin, stated that actions are deemed transitory where the transactions on which they are founded might have taken place anywhere, but are local where their cause is in its nature necessarily local, and that this distinction has been repeatedly recognized by the best elementary writers, citing 3 Blackstone's Comm. 294, and also Chitty's note (4) in his edition of Blackstone, vol. 2, 233, wherein an action for trespass on lands is expressly classed with those actions which demand their possession and are local, and makes only those actions transitory which are brought on occurrences that might happen in any place, and adds that the cases which support this distinction have no exception.

In Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913, it is said that: "By the law of England, and of those states of the Union whose jurisprudence is based upon the common law, an action for trespass upon land, like an action to recover title or the possession of the land itself, is a local action, and can only be brought within the state in which the land lies. (Livingston v. Jefferson, 1 Brock. 203 [F. Cas. No. 8411]; McKenna v. Fisk, 42 U.S. (1 How.) 241 ; Northern Indiana R. Co. v. Michigan Cent. R. Co., 56 U.S. (15 How.) 233 ; Huntington v. Attrill, 146 U.S. 657 [13 S.Ct. 224, 36 L.Ed. 1123]; British South Africa Co. v. Companhia de Mocambique, [1893] App. Cas. 602; Cragin v. Lovell, 88 N.Y. 258; Allin v. Connecticut River Lumber Co., 150 Mass. 560 [6 L. R. A. 416, 23 N.E. 581]; Thayer v. Brooks, 17 Ohio 489, 492 ; Kinkead, Code Pleading, sec. 35.)"

The court says that where the principal thing for which recovery is sought is the trespass upon the land, and the conversion of the timber is only incidental to such trespass, it is still to be regarded as local.

Ophir Silver Mining Co. v. Superior Court, 147 Cal. 467, 3 Ann. Cas. 340, 82 P. 70, contains an illuminating discussion of this question and how it may always be correctly determined whether the action is transitory or local, saying: "An action to recover only the value of ore or timber severed from the land is transitory, and may be maintained wherever the trespasser can be served with a summons, although the plaintiff may be compelled to allege and prove ownership of the land...

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