Archibald v. Miss. & Tenn. R. R.

1. Actions. Distinction between local and transitory. Whether actions in this state are local or transitory is governed solely by statute, and not by the common law. 2. Local Actions ; What Are. The only local actions in this state are ejectment and trespass on land, styled at common law trespass guare clausum fregit. 3. Venue of Actions. Local actions must be commenced in the county where the land is situated. All other actions must be brought with reference to the person of the defendant. Code 1880, § 1498; Oliver v. Loye, 59 Miss. 320. 4. Same. Action for damage from overflow. Oase in judgment. An action to recover from a railroad company damages which accrued to plaintiff’s land from the manner in which the company constructed its road-bed along the line of said land, is not a local action, and may be brought in any county where any part of such railroad may be. 5. Action of Trespass on Land Defined. An action is not an action of trespass on land, within the meaning of code 1880, § 1498, unless there exist the elements of force and entry necessary to constitute the common law action of trespass guare clausum fregit.

From the circuit court of Yalobusha county. Hon. W. M. Eogers, Judge. The facts are stated in the opinion. This is a personal, not a real action. It is not a suit for land, but to recover damages for flooding land. It is not a local action under code 1880, § 1498. Even in the two actions made local by said statute, if the land is in two or more counties, the residence of the defendant, if in one of them, controls. Eor the discussion of the subject of the venue in suits against railroads, see 1 Rorer on Railroads 671, and cases cited, and, as decisive of this case, Oa. R. R. & Banking Co. v. Kirkpatrick, 35 Oa. 144. That case decides that the statute, not the common law, controls. See also 1 Rorer on Railroads 672 ; Baldwin v. R. R. Co., 5 Iowa 518 ; Gi'aham v. R. R. Co., 64 N. C. 631. This is an action of trespass on land, and, under code 1880, § 1498, must be brought in the county where the land lies. The prior law said action “ quare clausum fregit;” the code of 1880 says, instead, “actions of trespass on land.” The form of the declaration is not assumpsit but trespass, following the form prescribed by code, § 1543. If this action can be brought out of the county of the land, ejectment may be so brought. This is not a cause arising “ from the business of a railroad company” in the sense of the term as used in code, § 1542. The phrase has reference to matters growing out of transportation, running of trains, and the like. Such is the business of railroads as contemplated by the statute. Is the store-house a part of the mercantile business? Would injury to adjoining land abused in the course of constructing a store-house be considered an injury arising from the mercantile business ? We think not.