
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Jackson, Administrator.
    
      Action for trespass on lands — In another state — Not maintainable in this state.
    
    An action for trespass on lands situated in another state, or injury thereto, cannot be maintained in this state.
    (No. 12084
    Decided October 25, 1910.)
    Error to the Circuit Court of Jefferson county.
    Leander Jackson, being the owner of certain lands situated in the state of West Virginia, brought an action in the court of- common pleas of Jefferson county, Ohio, against the plaintiff in error. Plis petition contained two causes of action: first, that the plaintiff in error had unlawfully appropriated to its own use about twenty feet of right of way in West Virginia, extending to a ferry on the Ohio River; and second, that said plaintiff in error failed and omitted to provide sewers, ditches, and drains to conduct the surface water from its right of way, by reason whereof the water flowed over the right of way of the said Leander Jackson. He claimed damages in the sum of five hundred dollars on each cause of action. The -plaintiff in error filed a demurrer to the jurisdiction of the court, which was submitted to, and sustained by, the court of common pleas. Thereafter, Leander Jackson died and Albert W. Jackson, as his administrator, was substituted as plaintiff and filed an amended petition in which the causes of actions are the same as in the original petition. To this amended petition the plaintiff in error filed a demurrer alleging: first, that the court had no jurisdiction of the subject of the action; and second, that said amended petition did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court of common pleas, the amended petition was dismissed, and judgment was rendered in favor of the plaintiff in error. The circuit court on error affirmed the judgment of the court of common pleas in sustaining the demurrer to the first cause of action, but reversed the judgment of the court of common pleas sustaining the demurrer to the second cause of action. Plaintiff in error seeks to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.
    
      Messrs. Dunbar & Sweeney, for plaintiff in error.
    The property is located wholly in the state of West Virginia, and the acts complained of, and the injury alleged to have been occasioned by those acts were done and sustained in West Virginia.
    The railway company, defendant below, although sued in Ohio, is amenable to the laws of the state of West Virginia to the same extent as its lessor company, and full and complete redress may be had in the courts of that state.
    There is absolutely nothing in the pleadings to indicate that the railway company was sued in its capacity of an Ohio corporation or as a citizen of Ohio.
    We insist that the damage claimed in the second cause of action is alleged to be the result of the overflowing of particular lands, and such being the case, the action is local in character. Cooley on Torts (1 ed.), 471; Morris v. Railway Co., 9 L. R. A., 349; Dicey on Conflict of Laws (2 ed.), 230.
    An action for trespass upon land is a local action and can only be brought within the state in which the land lies. Ellenzvood v. Chair Co.,, 8 O. F. D., 541, 158 U. S., 106; Allin v. Lumber Co., 150 Mass., 560, 6 L. R. A., 416; Thayer v. Brooks, 17 Ohio, 489; Rorer on Inter-State Law (2 ed.), 324.
    The action of the circuit court can not be justified under any existing statute, and opposing counsel evidently fails to distinguish between county lines and state boundaries. The circuit court here undertakes to extend the power of the Ohio Legislature beyond the state, and seeks to invest the defendant in error with privileges and rights that are denied to him in the state in which the land is located and where the alleged cause of action arose. - .
    
      Mr. W. C. Brown, for defendant in error. .
    The defendant in error contends that there are no local actions in Ohio, -except what are expressly so made by statute. Genin v. Grier, 10 Ohio, 210; City of Fostoria v. Fox, 60 Ohio St., 340.
    Now, the only local actions mentioned in the Revised Statutes of Ohio are contained in Sections 5019 to 5022, inclusive. The only governing legislation where actions relating to real estate are limited to the county where the real estate is situated is Sections 5019, 5020 and 5021, Revised Statutes. Section 5019 provides that the action must be brought where the real estate is situated, for the recovery .of real property or an estate, or interest therein, for the partition of real property, and for the sale of real property under a mortgage lien or other incumbrance or charge. Section 5020 amplifying more fully the preceding section, provides for exigencies where the real estate is situated in two or more counties, while Section 5021 deals with the doctrine of specific performance.
    Section 5028 provides that every other action must be brought in the county in which the defendant resides or may be summoned, etc.
    Under the present state of facts, where the prayer of the petition seeks a personal judgment, why has not the court jurisdiction? City of Fostoria v. Fox, 60 Ohio St., 348.
   Davis, J.

The circuit court affirmed the judgment of the court of common pleas as to the first cause of action, but reversed it as to the second cause of action. The judgment of the circuit court is defended on the ground that the question involved is definitively settled by the rulings of this court in Genin v. Grier, 10 Ohio, 210, and City, of Fostoria v. Fox, 60 Ohio St., 340. With this contention/ we cannot agree.

The cases cited, like all others, should be interpreted with reference to the facts of each case and .the questions presented to and considered by the court. In those cases the question now before this court did not arise. In both cases the cause of action asserted accrued within this state, and the question of conflict of jurisdiction between the courts of this state and the courts of another state did not arise upon the record and was not considered by the court. In each case the question was, which county in this state was the proper forum for the action. That being so, it was answered that the forum must be determined by the statutes of this state, or as it was expressed by Hitchcock, J., in Genin v. Grier: “Whether this distinction between local and transitory actions shall be adhered to must depend upon our own peculiar system of jurisprudence.” But obviously, the statutes of this state could not settle a question of jurisdiction between the courts of this state and those of another state.

Hence, in Thayer v. Brooks, 17 Ohio, 489, in which the plaintiff complained that the defendant cut a ditch across his farm in Pennsylvania, whereby water was diverted from the plaintiff’s mill in Ohio, this court said: “Actions of trespass, and trespass on the case, for injuries to real estate, or land, are local; and in all cases where the act done, and the injury sustained, lie wholly in a foreign jurisdiction, the place of the injury is the forum of the trial. The doctrine is universally recognized as a rule of the common law. But where the injury is sustained in one state from an act done in another, an action to recover damages for the same may be prosecuted in either.”

In a well considered case, the supreme court of Massachusetts said: “It is not denied that trespass quare clausum fregit is a local action, and that at common law the courts of.this commonwealth have no jurisdiction of trespass upon land in another state or country. The objection is not that an action of which the court has jurisdiction is brought in the wrong county, but that the court has not jurisdiction of the cause of. action;” and the court dismissed the action because the cause of action accrued in another state. Allin v. Connecticut River Lumber Co., 150 Mass., 560.

In Ellinwood v. Marietta Chair Co., 158 U. S., 105, the supreme court of the United States declared 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 the title or possession of the land itself, is a local action, and can only be brought within the state in which the land lies.” The same ruling was made in Morris v. Missouri Pacific Ry. Co., 78 Tex., 17.

In 2 Cooley on Torts (3 ed.), 901, it is said: “That actions for trespasses on lands in a foreign country cannot be sustained, is the settled law in England and in this country. The decision of Chief Justice Marshall to that effect in the suit brought by- Mr. Edward Livingston against Mr. Jefferson, for having forcibly dispossessed him of the batture in New Orleans, has been often- followed without question.”

We are of the opinion that the ruling of the circuit court is against the great weight of authority, and therefore its judgment is

Reversed and the judgment of the court of common pleas is affirmed.

Summers, C. J., Crew and Shauck, JJ., concur.  