Dodge v. Colby — 13 N.Y. St. Rep. 848

Majority

p. 848

George E. Dodge, App’lt, v. John L. Colby, Resp’t.^[1]

(Court of Appeals,

Filed February 28, 1888.)

Headnote

1. Jurisdiction—Trespass—Court has no jurisdiction oh action hor TRESPASS UPON LANDS SITUATED IN OTHER STATES.

The courts of this state have no jurisdiction of actions for trespasses upon lands situated in other states.

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2. Same—Pleading—Trespass quare clausum fregit when pleaded.

In. the first and second causes of action set forth in the complaint it was alleged the defendant and other persons acting with or under him cut timber, tapped trees and removed timber and turpentine from lands belonging to plaintiff, situated in the state of Georgia. Held, that they each stated a cause of action arising out of trespass quare clausum fregit upon lands situated in another state, and that in respect to such actions the court had no jurisdiction.

S. Same—The gravamen of the charge governs question of jurisdiction.

As the gravamen of the charge was the unlawful intrusion upon his real estate, although upon the facts stated some of the damages alleged to have been sustained by him might have been recovered in an action of trover. Held, that the action could not be maintained.

4. Same—Desire of plaintiff to reach particular party will not GIVE JURISDICTION

The fact that the plaintiff desired a remedy against a particular person rather than against those who were exposed to prosecution in the place where the wrong was committed will not give our courts jurisdiction.

5. Slander upon title to land—Pleading—When cause of action stated.

The third cause of action set forth in the complaint charged that the defendant, and others acting under his authority, had both publicly and privately denied the plaintiff's title to the land. There was an allegation in the count that the statements alleged to be slanderous “ were false and defamatory, and were made and caused to be circulated and published by the defendant and his agents, maliciously and with intent to injure the said plaintiff and his title to the said lands. Held, that it stated a cause of action for slander upon title.

6. Same—Demurrer—Improper joinder of causes of action—Ground of—Code Civ. Pro., § 484.

The ground of demurrer, that causes of action had been improperly united as set forth, was that “ a cause of action of a transitory nature of which the court had jurisdiction had been united with one for trespass upon lands without the state, of which the court had no jurisdiction.” Held, that the demurrer was not good; that this was not one of the grounds of demurrer authorized by the Code Civ. Pro., § 484.

7. Same—Demurrer for want of jurisdiction—Effect of.

It is a proper ground of demurrer that the court has not jurisdiction of any specific cause of action, but this does not authorize a demurrer upon the ground that such causes of action are united with one of which it has jurisdiction.

8. Same—What causes of action can be joined—Code Civ. Pro., 8 484.

Under Code Civil Procedure, section 484, causes of action for slander cannot properly be joined with actions for injury to real property.

Appeal from a judgment of the supreme court, general term, first department, reversing an interlocutory judgment entered at special term (overruling a demurrer to the plaintiff’s complaint) and ordering judgment for the defendant on the demurrer.

The plaintiff brought this action as the owner of about 300,000 acres of land, situated in the state of Georgia, to recover damages for timber and turpentine taken from the

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land, and also for the slander of his title by the defendant. The complaint contained two causes of action for the timber and turpentine. To present the first of these causes of action it was alleged the defendant, and others acting with him, “have caused various persons to cut timber and to take turpentine, the property of the plaintiff, from the same.” The second cause of action was similarly stated. For that purpose it was alleged that the defendant and others for whom he was acting represented to lawless and irresponsible persons that they would protect such persons “in trespassing upon such lands and removing turpentine and timber, the property of the plaintiff, from the same.” And that various persons'“thus encouraged and protected by the defendant and by his said agents, and relying upon their assurance and protection, and directly instigated by them, have taken turpentine and timber from the said lands, the property of the plaintiff, of great value.” The residue of the complaint containing what was relied upon as a third cause of action, consisted of the charge that the defendant, and others acting under his. authority, had both publicly and privately denied the plaintiff’s title to this land. It appeared from the allegations contained in this subdivision of the complaint stated, that they had been confirmed in the propriety of their claim of a title to the property adverse to the plaintiff by the unanimous decision of four able legal gentlemen who had investigated the subject and concluded that the plaintiff was not the owner of the land. This count also contained the allegation that the statements alleged to be slanderous “ were false and defamatory, and were made and caused to be circulated and published by the defendant and his agents, maliciously and with the intent to injure the said plaintiff and his title to said lands.”

John E. Parsons, for app’lt; Stephen B. Brague, for resp’t.

The defendant demurred to the complaint, in this action and to each separate cause of action stated therein upon three grounds, viz.:

First. That the court has not jurisdiction of the subject of the action.

Second. That the complaint does not state facts sufficient to constitute a cause of action.

Third. That causes of action have been improperly united, viz., a cause of action for slander of title, which is a transitory action, with one for trespass on lands without the state, of which the court has no jurisdiction.

The special term overruled the demurrer, and, to appeal to the general term, that court reversed the order of the. special term.

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' The general term held that the first and second counts of the complaint each stated a cause of action arising out of trespasses upon lands situated in the state of Georgia, and that in respect to such actions the courts of this state had no jurisdiction, and therefore sustained the demurrer to those counts.

We concur in the conclusions reached, by that court in respect to this portion of the complaint. The counts referred to, we think, under the liberal system established hy the Code, each clearly stated a good cause of action in trespass quare clausum fregit and entitled the plaintiff, if sustained, to recover for all damages accruing to him from the acts described therein. It constitutes no answer to this proposition that the plaintiff might have recovered, upon the facts stated, some of the damages alleged to have been sustained by him, in an action of trover, so long as the gravamen of the charge was the unlawful intrusion upon his real estate. The cutting and tapping of trees constituted the real basis of the damages claimed. While the counts referred to each allege the value of the timber and turpentine claimed to have been carried away from the premises of the plaintiff, this is merely incidental to the trespass alleged, and the complaint concludes with a general prayer for judgment which would cover the damages arising from the alleged unlawful entry upon the plaintiff’s lands and the trespasses committed thereon as well as the incidental damages arising from the conversion of his property.

The doctrine that the courts of this state have no jurisdiction of actions for trespasses upon lands situated in other states, is too well settled to admit of discussion or dispute. American Union Tel. Co. v. Middleton, 80 N. Y., 408 ; Cragin v. Lovell, 88 id., 258.

The claim urged , by the plaintiff that if not permitted to maintain' this action, he is without remedy for a most serious injury, is quite groundless and affords no reason for the assumption of a jurisdiction by this court which it does not possess. The plaintiff would seem to have the same remedy for the trespasses alleged that all other parties have for similar injuries. His lands cannot be intruded upon without the presence in the state of the wrong-doer, and no reason is suggested why he could not seek his remedy against the actual wrong-doers in the courts having jurisdiction. His remedy is ample and it is no excuse for assuming a jurisdiction which we do not have, that the plaintiff desires a remedy against a particular person rather than one against the real perpetrators of the injury, who were exposed to prosecution in the place where the wrong was committed.

We are, however, unable to agree with the general term

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in the conclusion reached by it that the third count does not state a good cause of action. We are inclined to think that this result was arrived at through inadvertence in failing to observe the allegation in the count, that the statements alleged to be slanderous “were false and defamatory and were made and caused to be circulated and published by the defendant and his agents, maliciously and with the intent to injure thé said plaintiff and his title to the said, lands.” The demurrer concedes the truth of this allegation and renders it improper for the court to refer to the statements so alleged to be false, defamatory and malicious, as the foundation of a claim that they were made in good faith, and in the" exercise of a lawful right on the part of the defendant to assert his title to the lands-referred to.

The statement in the count alleged to have been made by the defendant that his title had been investigated by four able legal gentlemen, who unanimously concurred in pronouncing the plaintiff’s title bad, was precisely one of the statements which the complaint alleged to have been false, defamatory and malicious, and the truth of which characterization was admitted by the demurrer. It was error therefore in the court below to refer to this statement as proof of the propriety of the defendant’s claim to be the owner of the lands, or as justifying, in any degree, the alleged slanderous statements.

We'are of the opinion that this count of the complaint substantially complied with the requirements of the rule relating to the statement of a cause of action for slander upon title.

The general term, we think, also erred in sustaining the-demurrer to the third count, upon the ground that there-was an improper joinder of causes of action. It is quite true that under section 484 of the Code of Civil Procedure, causes of action for slander cannot properly be joined with actions for injuries to real property; bub this was not the ground of objection stated in the demurrer. The ground there specified was that a cause of action of a transitory nature, of which the court had jurisdiction, had been united with one for trespasses upon land in another state, of which the court had no jurisdiction. This is not one of the grounds of demurrer authorized by the code.

It is a proper ground bf demurrer that the court has not jurisdiction of any specified cause of action; but this does, not authorize a demurrer upon the ground that such causes of action are united with one of which it has jurisdiction.

The first and second counts of the complaint must be held bad upon the ground that the court had not jurisdiction of the subject of the action, but no sufficient ground

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of demurrer has been presented to the third count, and it must, therefore, be held good. The Code requires the grounds of demurrer to be specifically stated, and when that is done it may safely be disregarded. Code of Civil Procedure, § 490.

Our conclusion, therefore, is that the judgment of the general term should be affirmed, except in so far as it relates to the third count, and as to that it should be reversed and that of the special terna affirmed, without costs to either party upon tins appeal.

All concur.