Majority
p. 483*Watts’ Administrators vs. Kinney.
Headnote
An action will not lie for an injury done by the diversion of a water course where the premises injured are situate in another state: the injury so far savours of an injury to the realty as to he classed with heal actions, and though the courts of this state will entertain actions which are in their nature transitory, notwithstanding they arise abroad, they will not do so as to actions which are in their nature local.Whether in such case a defendant must demur, or may avail himself of the objection on the trial, quere.
Error from the superior court of the city of New-York. ' The adminis
p. 484insisted, that the action was transitory, and that the court below had jurisdiction ; and that if it was not so, the fact of the property being situate in New-Jersey appearing upon the face of the declaration, the defendant should have demurred, and that it was too late to avail himself of the objection at the trial. insisted that the action was local, and not transitory; and that the defendant could not demur, because it did not appear on the face of the declaration that the premises, in respect to which it was alleged the injury was done, were situate in New-Jersey.
trators of George Watts brought an action on the case in the superior court of the city of New-Yorh against Kinney, for diverting the waters of a stream from the mill of the plaintiffs situate at Newark, in the state of New-Jer' sey, and for obstructing a way leading from the mill. The first count of the declaration stated that Watts, in his life time, and the plaintiffs since his •death, were lawfully possessed of the mill, &c. situate and being at Newark, to wit, at the city and county of New-Yorh, and ought to have had the benefit and advantage of a certain stream or water course, &c. yet that the defendant, on, &c. cut a trench, and diverted the water from flowing to the mill. The second and third counts were similar. The fourth count recited that Watts in his lifetime, and the plaintiffs since his death, had been and were entitled to and possessed of a certain lot called the dock lot, situate, lying and being in the township of Newark, in the state of New. Jersey, to wit, at the city and county of New-Yorh, and also of a certain right of toayto the said dock, yet the defendant, on, &c. at the said township of Newark, to wit, at the said, city and county of Neto- York, cut a trench across the way, and thereby prevented the use thereof. The defendant pleaded the general issue. On the trial, the plaintiffs produced in evidence a lease executed by the defendant to Watts in his life time of a dock lot, a dam and water privileges in the township of Newark, in the state of New-Jersey, for the term of five *years, and proved the acts complain- [ *485 ] ed of as injuries in the declaration. The defendant moved for a nonsuit, on the grounds: 1. That he was justified in the acts done by a reservation in the lease as to the height of the plaintiffs’ dam ; and 2. That the injuries, if any, were done in another state, were connected with the realty, and that consequently the action was local, and confined to the place were the injuries were done. The court granted a nonsuit, and the plaintiffs, on a bill of exceptions, sued out a writ of error.. The point arising on the reservation in the lease was before this court in a former action. See 14 Wendell, 88.
D. Graham, for the plaintiff in error,
B. W. Bonney, for the defendant,
By the Court, It appears to be conclusively settled, that
p. 485
an action on the case for diverting a water-course, so far savours of the realty as to be classed with local'actions, and must be tried in the county where the injury happens. 1 Chitty’s Pl. 271, 284. 1 Bacon, 56. 7 Co. 61, 62. Raider’s case; 1 Tidd,, 369. 2 East, 497. The Company, &c. of M. & I. Navigation v. Douglass, 1 Saund. Pl. Ev. 412. 1 Taunt. 379. It stands on a footing in this respect with real and mixed actions, such as trespass quare clausum fregit, ejectment, waste, &c. where, if the lands lie in & foreign country, they cannot be tried here, Bacon, 56 ; 4 T. R, 503 ; 1 Strange, 646 ; 2 W. Black. R. 1070 ; Saund. Pl. § Ev. 412 ; [ *486 ] and the objection is available *at the trial under the general issue. Id. and 1 Tidd, 369. 2 W. Black. R. 1033. Cowp. 410. 12 Wendell, 52. Doulson v. Matthews and another, 4 T. R. 503, was trespass for entering the plaintiff’s dwelling house in Canada and expelling him ; the plaintiff was nonsuited at the trial by Lord Kenyon, on the ground that the action was local, which nonsuit was afterwards sustained by the whole court. Buffer, J. observed, that they could try actions which are in their nature transitory, though arising out of a transaction abroad ; but not such as are in their nature local.
It was said on the argument that if the objection appears on the face of the declaration, the defendant should demur, and cannot avail himself of it on the trial. I doubt if the cases above referred to maintain any such distinction. But if they do, the three first counts of the declaration here do not present it, as the court cannot know that Newark, there named, lies out of the city and county of New-York, and the plaintiffs claimed to recover on these counts.
An opinion was expressed by the court, when this lease was formerly before ns, that the proviso limited the elevation of the water by the dam, at a point that would not raise the flow of the pond above the apron of the old miff; an opinion we stiff adhere to for the reasons then given. 14 Wendell, 38. There is some little obscurity in the form of expression, but the intent cannot be mistaken. The construction contended for by the plaintiffs would entirely destroy the enjoyment of the upper miff.
Judgment affirmed.