Montesano Lumber Co. v. Portland Iron Works

Mr. Justice McBride

delivered the opinion of the court.

1, 2. Many specifications of error are assigned in the abstract, but only three are specified or discussed in the brief or at the hearing, and we shall therefore treat the others as waived. It is admitted that the laws of the State of Washington require that articles of incorporation shall specify the name of the city, town or locality in which the principal place of business of the company is to be located, and it is shown that the articles of the defendant’s vendee so specified Seattle, in King County. It also appears that the Supreme Court of Washington has decided that the residence of a corporation is the city and county named in the articles of incorporation as its principal place of business. It is shown the laws of Washington require that all conditional sales of personal property, or leases thereof containing a conditional right to purchase when the property is placed in the possession of the vendee, shall be absolute to purchasers, incumbrancers and subsequent creditors in good faith, unless within ten days after the taking of possession by the vendee a memorandum of such sale, stating its terms and conditions, shall be filed in the auditor’s office of the county wherein at the date of vendee’s taking possession of the property the vendee resides. It is *62 also apparent that the conditional bill of sale was never recorded in King Connty, the vendee’s legal residence, bnt was recorded in Chehalis County, where the mill was situated. From these facts it follows that, if plaintiff is a purchaser in good faith, the conditional bill of sale is void as to it, and it was the owner of the machinery at the time of defendant’s alleged trespass. It is our opinion that the title to the property vested in plaintiff the moment it was installed in the mill. There was no constructive notice arising from the recording of the bill of sale in the wrong county, and there is no evidence that plaintiff had any actual notice of the conditional character of the transaction until nearly a year after the machinery was installed. The purport of the lease is that the lessee shall pay $300 per month as rent for the mill, that $10,000 shall be paid in advance in machinery and equipment to consist of certain articles specified in the lease, and that upon the installation of such machinery and equipment it shall be and become the property of the lessor. Aside, therefore, from the question of whether or not the machinery was so permanently attached to the building as to become a fixture, and consequently a part of the realty, it became plaintiff’s property by the terms of the lease. Plaintiff was a purchaser within the meaning of the statute quoted. The consideration paid was the giving of the lease and putting the lessee into possession of a valuable mill.

3. So far, then, plaintiff has shown a right to recover damages unless defendant’s contention that this is an action to recover for injuries to real property has been sustained. It is the almost universal holding in this country that an action for trespass on real property is local, and can be maintained only in the state or county where the injury occurred, and that a court *63 foreign to the place of injury is without jurisdiction to determine such a controversy.. Such was the common-law rule as is conclusively demonstrated in the opinion of Lord Chancellor Herschell in the great case of the British South Africa Co. v. Companhia de Mocambique, [1893] App. Cas. 602, where the whole subject was thoroughly gone over in view of supposed changes made by the English reformed procedure. Imthe United States the holding to the same effect has been almost unanimous. Ellenwood v. Marietta Chair Co., 158 U. S. 105 ( 39 L. Ed. 913 , 15 Sup. Ct. Rep. 771), was a case practically coinciding with the case at bar. The complaint alleged that on January 1, 1875, and on divers other days, etc., sundry persons, knowing the land and timber thereon to be the plaintiff’s property, without any right or authority from him, and at the instance and for the use and benefit of the defendant, cut down, removed and sawed into logs a large quantity of the timber, and the defendant, knowing the logs to be cut from the land, and both land and logs to be Bailey’s property, took the logs into its possession and converted them to its own use. There was no demurrer or plea to the jurisdiction, and an answer was filed to the merits, but thereafter The court ordered that the action be abated and stricken from the docket. Upon the appeal Justice G-ray said:

“Various grounds taken by the defendant in error in support of the judgment below need not be considered, because there is one decisive reason against the maintenance of the action. 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 the possession of the land itself, is a local action, and can only be brought within the state in which the land lies: Livingston v. Jefferson, 1 Brock. 203 [Fed. Cas. *64 No. 8411]; McKenna v. Fisk, 1 How. 241, 247 [ 11 L. Ed. 117 ]; Northern Indiana R. R. v. Michigan Central R. R., 15 How. 233, 242, 251 [ 14 L. Ed. 674 ]; Huntington v. Attrill, 146 U. S. 657, 659, 670 [ 36 L. Ed. 1123 , 13 Sup. Ct. Rep. 224]; British South Africa Co. v. Companhia de Mocambique, [1893] App. Cas. 602; Cragin v. Lovell, 88 N. Y. 258 ; Allin v. Connecticut River Lumber Co., 150 Mass. 560 [ 23 N. E. 581 , 6 L. R. A. 416]; Thayer v. Brooks, 17 Ohio, 489, 492 [ 49 Am. Dec. 474 ]; Kinkead’s Code Pleading, § 35. The original petition contained two counts, the one for trespass upon land and the other for taking away and converting to the defendant’s use personal property; and the cause of action stated in the second count might have been considered as transitory, although the first was not: McKenna v. Fisk , above cited; Williams v. Breedon, 1 Bos. & P. 329. But the petition, as amended by the plaintiff, on motion of the defendant, and by' order and leave of the court, contained a single count, alleging a continuing trespass upon the land by the defendant, through its agents, and its cutting and conversion of timber growing thereon. This allegation was of a single cause of action, in which the trespass upon the land was the principal thing, and the conversion of the timber was incidental only, and could not, therefore, be maintained by proof of the conversion of personal property without also proving the trespass upon real estate: Cotton v. United States, 11 How. 229 [ 13 L. Ed. 675 ]; Eames v. Prentice, 8 Cush. [Mass.] 337; Howe v. Willson, 1 Denio [N. Y.] 181; Dodge v. Colby, 108 N. Y. 445 [ 15 N. E. 703 ]; Merriman v. McCormick Co., 86 Wis. 142 [ 56 N. W. 743 ]. The entire cause of action was local. The land alleged to have been trespassed upon being in West Virginia, the action could not be maintained in Ohio. The Circuit Court of the United States sitting in Ohio had no jurisdiction of the cause of action, and for this reason, if for no other, rightly ordered the case to be stricken from its docket, although no question of jurisdiction had been made, by demurrer or plea: British South Africa Co. v. Com *65 panhia de Mocambique, [1893] App. Cas. 602, 621; Weidner v. Bamkin, 26 Ohio St. 522 ; Youngstown v. Moore, 30 Ohio St. 133 ; Ohio Rev. Stats., § 5064.”

Other eases to the same effect are Du Breuil v. Pennsylvania Co., 130 Ind. 137 ( 29 N. E. 909 ); Brown v. Irwin, 47 Kan. 50 ( 27 Pac. 184 ); Morris v. Mo. Pac. Ry. Co., 78 Tex. 17 ( 14 S. W. 228 , 22 Am. St. Rep. 17 , 9 L. R. A. 349); Hill v. Nelson, 70 N. J. Law, 376, ( 57 Atl. 411 ); Karr v. N. Y. J. P. Co., 78 N. J. Law, 198 ( 73 Atl. 132 ); Allin v. Connecticut River Lumber Co., 150 Mass. 560 ( 23 N. E. 581 , 6 L. R. A. 416); Smith v. Southern Ry. Co., 136 Ky. 162 ( 123 S. W. 678 , 26 L. R. A. (N. S.) 927). In a note to the latter case, as reported in L. R. A., is found cited a great number of authorities holding the views above indicated; and, since the common law prevails in this state, except where modified by statute or unadapted to our conditions, which is not the case here, we feel constrained to follow this construction. A contrary view is taken by the Supreme Court of Minnesota in Little v. Chicago etc. Ry., 65 Minn. 48 ( 67 N. W. 846 , 60 Am. St. Rep. 421 , 33 L. R. A. 423). The opinion is strong and plausible, but it is by a divided court, and the dissenting opinion by Justice Buck, presenting strong and cogent reasons why the rule of the common law should be adhered to, among other things, observes: .

“As a matter of policy, citizens of other states should not be permitted the use of our courts to redress wrongs and injuries to real property committed within their own territory. That is not what our courts were created or organized for. Nonresidents should not be invited to bring to our courts litigation arising over injuries to real property outside of our territorial limits. Certainly there is nothing in our Constitution or laws which justifies them in imposing the burden of maintaining courts at our expense for *66 their use and benefit. Protection of our own citizens is the primary object and duty of our own courts, and it is, to say the least, a very generous and liberal interpretation of the law which accords to suitors residing in other states the right to litigate in our courts questions of injury to real estate there situate, while the courts of those states reject the claim of our own citizens to litigate there injury to real estate situate here, notably the adjoining State of Wisconsin, which adjoins our state, and where the subject matter of this litigation is situated. It is clearly against our interests that those living in the State of Wisconsin near the division line should be encouraged in this class of litigation because our laws may be more favorable as to the rules of evidence, or for any other cause, and thus necessitate taxation of our people that nonresidents may have a forum to litigate that which ought to be, and is, a local action in the State of Wisconsin. Our citizens have no such right in the courts of Wisconsin. Comity should be reciprocal, and this can be more properly obtained by legislative enactments of the respective states than by an interpretation in direct conflict with the almost universal judicial decisions elsewhere. But I should seriously doubt the wisdom of any such enactment. It might, perhaps, prevent the miscarriage of justice in some cases, but it would aid such miscarriage in many instances.”

Further on in the opinion the same justice observes:

“Again, suppose the courts of California should adopt the doctrine of the majority opinion, and one of our citizens should visit that state for pleasure, health, or business, and is there sued by someone claiming that lands belonging to him situate here have been damaged by such citizen of Minnesota, would it not seem a miscarriage of justice that the trial in such case must take place thousands of miles away from the man’s home, and from the situs of the property alleged to have been injured? The hardship of sucia a proceeding would seem to be intolerable, and I can *67 not give my assent to any such, doctrine, whatever may be the rule as to the trial of actions upon voluntary contracts between parties; and I prefer that the rule should be that for injuries to real property the jurisdiction of our courts should only be coextensive with its territorial sovereignty.”

In short, there is no such preponderance of calamities arising from adherence to the common-law rule as would justify this court in judicially repealing it. Once the bars are let down citizens of New York temporarily sojourning in Portland may litigate in our courts and at the expense of our taxpayers causes of action for injuries to real property situated in their home state just as a citizen of Minnesota could, under the case above cited, sue a citizen of Oregon passing through St. Paul on his way East for injuries to real property situated in Portland, and compel him to bring his witnesses many hundred miles to defend. The fact generally is that witnesses to injuries to real property must usually be obtained in the vicinity of the place where the injury occurred, and such locality is therefore' the natural and logical place for trial. Instances may occur where a person having no property in a state may commit an injury to real property therein and leave the state, thereby defeating a recovery, but it is rarely the case that serious injury may be perpetrated with such expedition and secrecy as to prevent an action being begun and service of summons upon him. The present case is a fair illustration of this. The defendant went openly and consumed several days in taking the machinery out of the mill. The plaintiff was there and knew defendant was removing it, and could have enjoined it before any great damage had been done, or could have replevined the machinery before it was shipped j but, instead of *68 doing this, it contented itself with serving a written protest and permitted the spoiliation to go on. If it slept on its rights, it should not now be heard to complain that it has lost its remedy, which as we shall presently show, it has not so far as an action of trover will give it a remedy.

4. In this connection we will consider the contention of plaintiff that this is not an action for injury to real property, but to recover the value of personal property taken and converted by defendant. It may be premised that every complaint must proceed upon a theory and must be good upon that theory, or it will be insufficient, and no recovery can be had upon a theory different from that upon which the pleading is framed: 31 Cyc. 116. This complaint is founded upon the theory that the machinery was by the terms of the lease to become part of the mill, and therefore realty, and that it was actually so attached as to become realty, in consequence of which plaintiff’s damage, considered as a whole, comes about because the mill is rendered less valuable in the sum of $10,000 by reason of plaintiff’s trespass. There is no allegation that the machinery was of any particular value. It is incidentally said that it was of great value, which is a mere formal allegation and might mean $5 or $10,000. Such an allegation in an action of trover might be good after verdict, but it is usual in such an action for the complaint to state the reasonable value of the goods converted, and its absence, taken with the other allegations hereinafter noticed, tends to show the theory upon which the complaint is drawn. We have italicized certain allegations of the complaint and reply which further serve to characterize the complaint as an action for trespass guare clausum fregit. *69 Thus it is alleged that the agreement with the tenant was:

“That the said machinery, etc., when so established, should be and become a part of the said realty and a part of said sawmill and the property of the said plaintiff ; # * that the same was thereafter by the said company duly installed in the said mill and became a part of the said mill and mill plant and affixed thereto.”

It is further alleged therein:

That the defendant did wrongfully and unlawfully “tear down and dismember the said sawmill and took therefrom the machinery, tools, and appliances,” etc.

It is also stated:

That by said wrongful action “the said sawmill and sawmill plant of plaintiff was made useless and worthless, and it has been impossible to operate the said sawmill because of the action of the said defendant, and the machinery, tools, implements and appliances which the said defendant left in and about the said mill were useless and practically without value, and that by the wrongful and unlawful action of the said defendant as aforesaid the said plaintiff has been damaged in the sum of $10,000. ’ ’

Now, if this does not state a plain cause of action for ruining a mill by tearing out machinery which was so attached as to form part of the realty, and thereby rendering the mill useless, it would be difficult to frame a complaint that would state such a cause of action. In what way was plaintiff damaged? The answer is, by defendant rendering its mill useless. How did defendant render the mill useless? The reply follows, by tearing out and removing machinery attached to and part of the realty, so that it could no longer be operated. The complaint here states a much stronger case of trespass quare clausum fregit than the case of *70 Ellenwood v. Marietta Chair Co., 158 U. S. 105 ( 39 L. Ed. 913 , 15 Sup. Ct. Rep. 771). As showing the theory upon which the case was tried, it may be observed that plaintiff introduced testimony as to the effect generally upon the mill as such by reason of the taking out of the machinery, and plaintiff’s witnesses averred that in removing it defendant cut out some of the frames and some of the timbers, tore up the mill in a general way, and, in fact, nearly destroyed it so far as operating was concerned. It is plain that up to the time the court instructed the jury the case was presented and tried as a case of trespass upon real property. We conclude, therefore, that the case, both upon the pleadings and upon the theory upon which the evidence was introduced, was one for injury to realty, and therefore beyond the jurisdiction of the court to try.

5, 6. It is claimed, however, that the jurisdictional question was waived by the failure to demur to the complaint. Section 72, L. O. L., provides:

“If no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”

So that, where the complaint shows, as it does here, a case without the jurisdiction of the court to try, that fact may be raised at any time. Under the common law, as shown, the court had no jurisdiction to try a case of this character, and there is no statute granting that jurisdiction. Our Constitution invests the Circuit Courts with general jurisdiction “to be defined, limited, and regulated by law.” They are common-law courts, and any extraordinary jurisdiction not in *71 the course of the common law must come from either the Constitution or the statutes. The only statute defining, limiting or regulating their jurisdiction in actions regarding real estate is Section 42, L. O. L., which, among other things, provides that an action for injuries to real property shall be commenced and tried where the property is situated. This section is both a definition and a limitation of the jurisdiction of the courts of this state in reference to the trial of this class of actions; the subject matter, the real property injured, must lie within the boundaries of the county where the action is commenced, and the fact that the section quoted makes no provision for the venue of such cases where the injury occurred in another state, is in itself a tacit recognition of the common-law rule heretofore discussed. In Bliss on Code Pleading, Section 406, in discussing the objection “that the court has no jurisdiction over the subject of the action,” it is stated that it is a fatal objection, and cannot be waived by the party, but may be raised at any stage of the proceedings, and, after giving several instances where this defect arises, the author says:

“But this want of jurisdiction will more commonly appear in local as distinguished from transitory actions.”

Sentenis v. Ladew, 140 N. Y. 463 ( 35 N. E. 650 , 37 Am. St. Rep. 569 ), is cited by plaintiff as holding a contrary doctrine. While there are expressions in the opinion which indicate the court was of the opinion that jurisdiction had been waived by the defendant’s having answered to the merits, the question was not directly involved. In that case the plaintiffs had brought an action in New York for trespass to land situated in Tennessee. When the case was called for *72 trial, the plaintiffs failed to appear, and a large sum was assessed against them as costs. They then appeared and moved to set aside the judgment for costs on the ground that the action which they had instituted was local, and that the court had, therefore, no jurisdiction to award costs against them. Among other things the court said:

“We entertain no doubt that the Supreme Court had jurisdiction to render the judgment awarded in this action. Under the Constitution it has general jurisdiction in law and equity, and of the class of actions to which this cause belongs. It is not prohibited by any statute from entertaining jurisdiction of a suit for damages for injuries to real property in another state. As was stated by Judge Earl in Cragin v. Lovell, 88 N. Y. 258 : ‘It is a general rule of law that actions for injuries to real property must be brought in the forum rei sitae, and this rule of law has been, so far as I can discover, uniformly sanctioned and upheld in this state.’ But a party may waive a rule of law or a statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and having once done so, he cannot subsequently invoke its protection: Lee v. Tillotson, 24 Wend. 337 [ 35 Am. Dec. 624 ]; Embury v. Conner, 3 N. Y. 511 [ 53 Am. Dec. 325 ]; In re Cooper, 93 N. Y. 507 . If the court acquires jurisdiction of the persons of the parties by due personal service of process, or by their voluntary appearance and submission to its jurisdiction, and the defendant makes no objection to the authority of the court to hear the cause, and the parties proceed to a trial upon the merits, the judgment rendered would be neither void nor voidable for want of jurisdiction, but would be binding and conclusive upon the parties. * * It would be an intolerable abuse of the process of the court if the plaintiff could be permitted to select his tribunal and summon his adversary before it, and, *73 when defeated in the cause, be heard to say that the action was not cognizable by the court, and that the judgment which it had rendered was a nullity. It might be different if the court was one whose jurisdiction was expressly limited by statute, or there was some statutory inhibition of jurisdiction in a given case or class of cases. Then consent even might not confer' jurisdiction. ’ ’

The court was right in requiring the plaintiff to pay costs, but the result of its opinion, viewed apart from the concrete case there presented, would permit two citizens of Great Britain to litigate in New York concerning the rights of property situated in Germany. This might be vastly convenient just at present, but it is submitted that would be rather a severe tax on the comity of courts. The holding is directly contrary to the view taken by the Supreme Court of the United States in Sentenis v. Ladew, 140 N. Y. 463 ( 35 N. E. 650 , 37 Am. St. Rep. 569 ), which case we are disposed to follow.

7. We do not wish to be understood as holding that the plaintiff cannot recover in the courts of this state in an action for the trover and conversion of the machinery removed. We think the better authorities indicate that it can: Stone v. United States, 167 U. S. 178 ( 42 L. Ed. 127 , 17 Sup. Ct. Rep. 778); McGonigle v. Atchison, 33 Kan. 726 ( 7 Pac. 550 ). What we do decide is that a party cannot bring an action to recover damages for injury to real property and recover for the taking and conversion of personal property.

The action will be dismissed without prejudice.

Dismissed. Beheabing Denied.

Mr. Chiee Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.