
    Edward H. Litchfield, Respondent, v. The International Paper Company, The Piercefield Paper Company and Benton Turner, Appellants, Impleaded with Others.
    
      Change of venue — an action to enjoin the construction of a dam and for damage for flooding land is in trespass.
    
    An notion brought to restrain the defendants from raising and maintaining a dam in Franklin county, so as to flood lands owned by the plaintiff, lying partly in each of the counties of Franklin and of St. Lawrence, and for damages! is substantially an action in trespass, and as such is included within section 983 of the Code of Civil Procedure, defining what actions shall be tried in a county where the subject-matter or some part thereof is situated.
    
      Where the action was brought in the county of Kings, the plaintiffs residence, and two of the defendants made a motion to change the venue to St. Lawrence county, and one defendant made a motion to change the venue to Franklin county, the Appellate Division, upon an appeal from orders denying both motions, considered that while, as a matter of strict right, the defendants who made the first motion were entitled to determine in which of the two last-mentioned counties the action should he brought, it would, in view of the fact that the venue was not so changed, and that the dam was situate in Franklin county, change the venue to the latter county.
    Appeal by the defendants, The International Paper Company and The Piercefíeld Paper Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of April, 1899, denying tlieir motion to change the place of trial of the action from the county of Kings to the county of St. Lawrence.
    Appeal by the defendant, Benton Turner, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of April, 1899, denying his motion to change the place of trial of the action from the county of Kings to the county of Franklin.
    
      Charles Mac Veagh [Frederic B. Jennings with him on the brief], for the appellants.
    
      Hamilton Wallis, for the respondent.
   Per Curiam :

The plaintiff is the owner and in possession of lands lying in the counties of Franklin and St. Lawrence. This action is brought to restrain the defendants from raising and maintaining a dam on Racquette river, in Franklin county, so as to flood such lands, and for damages. The venue of the action is laid in the county of Kings, where the plaintiff resides. After answer, two of the defendants moved to change the place of trial to St. Lawrence county, on the ground that that county was the proper place for the trial of the action. This motion was denied. Subsequently another defendant moved, upon the same ground, to change the place of trial to Franklin county. This motion was also denied. From the orders denying such motions these appeals are taken.

An action for trespass on land under the old Code was unquestionablj7 local, for section 123, Code of Procedure, required that an action “ for the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property,” must be tried in the county in which the subject of the action or some part thereof was situate. Section 982 of the Code of Civil Procedure omits the language “ and for injuries to real property,” and instead thereof provides “ and every other action to recover, or to procure a judgment, establishing, determining, defining, forfeiting, annulling, or otherwise affecting, an estate, right, title, lien, or other interest in real property, or a chattel real,” shall be tried in the county in which the subject of the action is situated. It has been questioned whether the language of the present Code quoted includes an action of trespass; but the weight of authority in this court is to the effect that such an action falls within the provisions of the section. (Easton v. Booth, 19 Wkly. Dig. 552 ; Freeman v. Thomson, 50 Hun, 340; Dexter v. Alfred, 35 N. Y. St. Repr. 489.) The original note of Mr. Throop to this section of the Code of Civil Procedure shows clearly that it was not intended to make any actions transitory which by the old Code were local, but, on the contrary, to bring all equitable actions affecting the title of land within the rule applicable to actions at law. Unfortunately, by the change of phraseology adopted, he has created a greater uncertainty in the law on this subject than that which he sought to remove. Still, while the results of the alteration have.not been satisfactory, in our opinion the codifier is not justly subject to criticism, for we are clear that an action for trespass is an action “to procure a judgment * * * affecting an estate, right, title, lien, or other interest in real property.” Judgment in trespass may and generally will establish title to the property as between the parties litigant. The case before us is substantially an action in trespass. In the complaint the acts of the defendants are in terms alleged to constitute trespasses on the plaintiff’s lands. The relief sought is to restrain a continuance of the trespasses and for damages already caused. The section of the Code applies to equitable actions equally with legal actions. (Leland v. Hathorn, 42 N. Y. 547; Acker v. Leland, 96 id. 383.)

The venue of the action should, therefore, have been changed either to St. Lawrence or to Franklin county. Possibly, as a matter of strict right, the defendants which first moved for a change of venue could by their motion have determined the election between the counties of St. Lawrence and Franklin; but, in view of the fact that the venue was not so changed and that the dam against which the plaintiff seeks relief is situate in Franklin county, we think the preferable county to which to relegate the action is that county.

The orders appealed from should be reversed, with ten dollars costs and disbursements on each appeal, and place of trial changed to Franklin county, with ten dollars costs to abide the event of the action

All concurred.

Orders reversed, with ten dollars costs and disbursements on each appeal, and place of trial changed to Franklin county, with ten dollars costs to abide the event of the action.  