CASES

IN THE

SUPREME COURT

ОР

TEXAS.

MORRIS V. MISSOURI PACIFIO RAILWAY COMPANY.

[78 TEXAS, 17.]

ACTIONS, LOCAL AND TRANSITORY. Where a cause of action may arise anywhere, an action thereon is transitory, and when it could have arisen in one place only, the action is local. Hence an action of trespass to the person or for the conversion of goods is transitory, while an action for flooding particular lands is local.

LOCAL ACTIONS CONSIST, GENERALLY, of those instituted for the recovery of real estate or for injuries thereto, or for easements.

LOCAL ACTION TRESPASS JURISDICTION. An action for trespass to land situated in one country or state cannot be maintained in the courts of another state.

ACTIONS, LOCAL AND TRANSITORY, BETWEEN NON-RESIDENTS - JURISDICTION. - - Where a cause of action between non-residents is partly local and partly transitory, and arose beyond the limits of the state, the court may refuse to entertain jurisdiction, as jurisdiction is entertained in such cases only upon principles of comity, and not as matter of right.

Hare, Edmundson, and Hare, for the appellant.

R. C. Foster and A. E. Wilkinson, for the 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 was caused by defendant's negligence in permitting fire to be communicated thereto. Plaintiff's rights in the property grow 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 damage by fire being as follows: 1,000 acres of growing grass of the value of $5 per acre, the grass on the ground being worth $2 per acre, and the damage to said grass for future use, during the time that plaintiff would have been entitled to the same, being $3 per acre; posts destroyed, $17.20; amount paid hands for fighting the 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 flooding 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, or for easements": Cooley on Torts, 471.

That actions for trespass on lands in a foreign country cannot be sustained is settled law in England and in this country: Cooley on Torts, 471.

The decision of Chief Justice Marshall in Livingston v. Jefferson, 1 Brock. 203, upon this question appears to have been followed in numerous cases: See Cooley on Torts, 471, note 5. The action was for damage for trespass upon land charged to have been committed in Louisiana, brought in Virginia. It was held that it could not be maintained, because the damage and the act causing it occurred beyond the jurisdiction of the court in which the suit was brought. Such is the case before us.

The only case to which we have been referred as questioning the authority of the foregoing doctrine is that of Armendiaz v. Stillman, 54 Tex. 627. While there may be expressions in the opinion in that case which would give force to the contention of appellant that it is decisive of this case, we do not understand it to decide the question here raised. There is an

entire absence of analogy between the case last cited and the present in several essential features.

In the former case, the question was rather one of venue than jurisdiction. The parties were residents of Cameron County, in which the suit was brought. In the present case, the plaintiff is a resident and member of the Choctaw nation, in the Indian Territory (having, under the laws of the nation, become a member of the tribe by reason of his marriage with an Indian woman), and the defendant is a foreign corporation; both, therefore, being non-residents.

In the case cited, the act resulting in the injury to the land was committed by the defendant in Cameron County, within the court's jurisdiction. In accord with this decision will be found Rundle v. Delaware etc. Canal Co., 1 Wall. Jr. 275, where it was held that if a wrongful act committed in one state injure real property in another, action for damages may be brought in the former. So in Thayer v. Brooks, 17 Ohio St. 489, 49 Am. Dec. 474, an action was sustained for diversion of water in Pennsylvania resulting in injury to land in Ohio.

In the case under discussion, the alleged negligence causing the damage was committed beyond the limits of the state. In Armendiaz v. Stillman, 54 Tex. 627, the suit could have been brought alone under the eighth section of article 1198, regulating the venue of suits, which authorized a suit in any county where a trespass was committed affording a cause of action for damages. In that case, the fact that the plaintiff was a citizen of Texas, and, as such, was guaranteed a remedy through the agency of the judicial tribunals of his state by organic law, was an important reason against the interpretation of article 1198 as denying him a remedy for an injury done him in this state with respect to his property.

And the legislative department, in affording this protection to the citizen by statutory provisions as to venue, would not be restricted by the technical rules of the common law distinguishing between transitory and local actions. But the statute applies to such causes of action, necessarily, as arise within the territory legislated for, and cannot be construed as having any reference to resident citizens of a foreign country or state, or to any cause of action arising in such state or country. Hence it is that Armendiaz v. Stillman, 54 Tex. 627, cannot, we think, have any application to the case disclosed by the record before us.