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176 Indiana 597.

MYERS. J.-Appellee brought this action to recover damages for alleged injury to his property, caused by appellant's alleged converting of a small sanitary sewer into a storm and surface-water sewer, as a result of which the sewer became overloaded, and the water and sewage backed into appellee's cellar. In the court below appellee recovered damages in the sum of $275. The only error assigned is the overruling of the motion for a new trial. The complaint is in a single paragraph.

Instructions were given, to the effect that if appellee was damaged through the negligence of appellant, he could recover for his loss, provided he could show that he was free from contributory negligence. Other instructions were given, to the effect that if the jury should find that noxious and offensive material was forced into appellée's cellar, as a result of the construction of additional lateral sewers and flood-water catch-basins, and that appellee's cellar was thereby rendered unwholesome and impure, and his residence unhealthful and unfit for habitation, and if it was found that appellant knew these facts, then it was guilty of maintaining a nuisance, and there was no necessity for appellee to prove freedom from contributory negligence. It is contended by appellant that the theory of the complaint is that the damage was caused through the negligence of appellant, and that therefore the court erred in giving those instructions in regard to nuisance and wilful injury. The complaint in this case recites that "defendant knowingly, wilfully and negligently turned large volumes of surface-water into said sewer," etc. It further alleges that appellee was not guilty of contributory negligence. Appellant has cited several cases where persons, injured by trains, alleged in their complaints that the railroad company had "purposely, wilfully and negligently" caused the injury, and it was held that the complaint did not charge wilful injury. The ground for these decisions, however, was that the facts related in the complaint showed that the injury was not intentional, and the mere use of the terms "purposely" and "wilfully" was not sufficient to make a charge of wilful injury. In this case the facts as recited in the complaint do not show that injury was unintentional, but just the opposite. It is alleged that appellee informed appellant that he was being damaged by backing of sewage into his cellar, but that appel

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This discussion and controversy seem quite irrelevant, the only proper consideration being whether the petition states facts constituting a cause of action and whether the evidence was sufficient to justify the submission of the case to the consideration of the jury." Cf. Hyams v. Stuart King, [1908] 2 K. B. 696, 700-701, 717-718 (C. A.). See Clark, Code Pleading (1928) § 43.

lant not only refused to remedy this condition, but continued to connect other lateral drains with the sewer, thereby increasing the damage to appellee. We think that the theory of the complaint, judged from its general scope and tenor, is that appellee was damaged wilfully or intentionally.

However, as contended by appellant, the cause must be tried upon a single theory, and plaintiff must recover upon that theory, or not at all. In the case of Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 387, it is said: "There is a clear distinction between cases which count upon negligence as a ground of action and those which are founded upon acts of aggressive wrong or wilfulness, and a pleading should not be tolerated which proceeds upon the idea that it may be good either for a wilful injury, or as a complaint for an injury occasioned by negligence. It should proceed upon one theory or the other, and is to be judged from its general tenor and scope." It was the duty of the court to determine from the general scope and tenor of the complaint upon what theory the cause was to be tried, and to give instructions accordingly. If the complaint proceeded upon the theory of wilful injury, appellee could not recover for injury caused by the negligence of appellant, even though the court should find facts in his favor showing that he had an action for this cause. Therefore, it was error to give instructions under which appellee could recover either for wilful injury or for injury resulting from negligence.1 . . .

Appellant also contends that appellee has no cause of action in this case on the ground of negligence. It is unnecessary to decide this question, since the judgment must be reversed upon the error already pointed out.

The judgment is reversed.

MONKS, J., did not participate in this decision.2



158 United States 105.

ERROR to the Circuit Court of the United States for the Southern District of Ohio.

GRAY, J. This action was brought in the Circuit Court of the United States for the Southern District of Ohio, by one Walton, administrator of the estate of Latimer Bailey, deceased, and a citizen of New Jersey, against the Marietta Chair Company, a corporation of Ohio.

The original petition contained two counts; one count alleging that 1 Citations of a number of Indiana cases are omitted.

2 See, contra, Furman v. A. C. Tuxbury Land & Timber Co., 112 S. C. 71 (1918).

the defendant, on January 1, 1875, and on divers days between that day and May 4, 1885, in the lifetime of Bailey, unlawfully and with force broke and entered upon a tract of land in the county of Pleasants and State of West Virginia, owned and possessed by Bailey, and, by cutting and hauling timber thereon, cut up, obstructed, incumbered and devastated the land, and cut down, removed and carried therefrom a large quantity of timber, and converted and disposed of it to the defendant's own use; and the other count alleging that the defendant, on the days aforesaid, unlawfully took and received into its possession a large quantity of logs, the property of Bailey, and then lately cut and removed from that land, and converted and disposed of the same to its own use.

A motion by the defendant, that the plaintiff be required to make his complaint more definite and certain, was ordered by the court to be sustained, "unless the plaintiff amend his petition so as to show that the trespass complained of was a continuous trespass between the times mentioned in the petition."

The plaintiff thereupon, by leave of the court, filed an amended petition, containing a single count, alleging Bailey's ownership and possession of the land, and of the timber growing thereon; and that, on January 1, 1875, "and on divers other days from time to time continuously between that day and" May 4, 1885, sundry persons, knowing the land and the timber thereon to be Bailey's property, without any right or authority from him, and at the instance and for the use and benefit of the defendant, cut down and 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.

After the filing of an answer denying the allegations of the amended petition, and before the case came to trial, the court, upon Ellenwood's suggestion that Walton's letters of administration had been revoked, and Ellenwood had been appointed administrator in his stead, entered an order reviving the action in the name of Ellenwood as administrator; but afterwards adjudged that this order be set aside, and that the action be abated and stricken from the docket. This writ of error was thereupon sued out in the name of Walton, and was permitted by this court to be amended by substituting the name of Ellenwood. Walton v. Marietta Chair Co., 157 U. S. 342.

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, I Brock. 203; Mc

Kenna v. Fisk, 1 How. 241, 247; Northern Indiana Railroad v. Michigan Central Railroad, 15 How. 233, 242, 251; Huntington v. Attrill, 146 U. S. 657, 669, 670; British South Africa Co. v. Companhia de Moçambique, (1893) App. Cas. 602; Cragin v. Lovel, 88 N. Y. 258; Allin v. Connecticut River Co., 150 Mass. 560: Thayer v. Brooks, 17 Ohio, 489, 492; Kinkead's Code Pleading, § 35.11

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; William v. Breedon, 1 Bos. & Pul. 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; Eames v. Prentice, 8 Cush. 337; Howe v. Wilson, 1 Denio, 181; Dodge v. Colby, 108 N. Y. 445; Merriman v. McCormick Co., 86 Wisconsin, 142. 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

1 An action of ejectment obviously can be brought only in the state where the land sought to be recovered lies. The same rule necessarily applies, also, to actions which seek directly to affect the title to or possession of land. In other words, such actions are of necessity local. But an ordinary action of tort may be brought wherever jurisdiction may be obtained over the person of the defendant, regardless of where the tort occurred, and is a transitory action. Perhaps because trespass quare clausum fregit, like ejectment, has long been used to try titles, it has been classed by many courts as a local action. This is quite without reason, since all that the plaintiff seeks is damages, not possession of the land; and there never has been a rule that any action which involves deciding upon foreign land titles is local. Thus, in the principal case, trover would clearly have lain in Ohio, although the issue before the court might well have involved deciding upon a West Virginia title. Nevertheless, the rule stated in the principal case is followed in England and most of the United States, and has been applied to a few other types of actions than trespass to⚫ land. See Scott, Cases on Civil Procedure (1915) 8, n. 1. The leading American case is Livingston v. Jefferson, 1 Brock. 203 (C. C. Va. 1811). But the rule rests on authority alone, and has been repudiated in Minnesota by judicial decision, Little v. Chicago, St. P., M. & O. Ry. Co., 65 Minn. 48 (1896), and in New York by statute. See Jacobus v. Colgate, 217 N. Y. 235 (1916). It has never been law in Louisiana, where the civil law forms the basis of the legal system. See Holmes v. Barclay, 4 La. Ann. 63 (1849). For a discussion of the history of the rule, see Scott, Fundamentals of Procedure (1922) 1-24. 2 See Stone v. United States, 167 U. S. 178 (1897).

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. Companhia de Moçambique, (1893) App. Cas. 602, 621; Weidner v. Rankin, 26 Ohio St. 522; Youngstown v. Moore, 30 Ohio St. 133; Ohio Rev. State. [1890] § 5064.1


Judgment affirmed.2



145 Wisconsin 271..

KERWIN, J. The complaint in this action stated that the plaintiff was the owner of certain lands in Minnesota and that between November, 1903, and March, 1904, the defendant unlawfully and wrongfully entered upon said land and without authority wilfully and wrongfully cut standing live timber growing thereon and wilfully and wrongfully took and carried the same away and converted the same to his own use, to the great injury and damage of the plaintiff, and further alleged the value of said timber converted, and demanded judgment for that amount and also treble said amount as damages under the Minnesota statutes. The complaint also contains allegations setting up the statutes of Minnesota respecting wilful trespass and single and treble damages. The defendant answered admitting that the Minnesota statutes set up in the complaint were in full force and effect in the state of Minnesota as alleged in the complaint, and denied every other allegation of the complaint.

The court below sustained an objection to any evidence under the complaint for the reason that it was a complaint in trespass upon lands in Minnesota, therefore the court had no jurisdiction of the action, and denied the application of the plaintiff to amend the complaint on the ground that it had no power or jurisdiction to allow such amendment, for the reason that, the cause of action being one in trespass, the complaint could not be amended so as to set up a cause of action for conversion of the timber cut.

1 Section 5064 provided that objections to the jurisdiction of the court or to the failure of the petition (i.e., declaration or complaint) to state a cause of action were not waived by failure to raise such objections by demurrer or answer. Ohio Rev. Stat. (1890) § 4971, provided: "There shall be but one form of action, which shall be known as a civil action." Section 5060 provided that the plaintiff's petition should contain a "statement of the facts constituting the cause of action." Weidner v. Rankin, 26 Ohio St. 522 (1875), decided that the objection that a petition did not state a cause of action in favor of the plaintiff was not waived by failure of the defendant to demur. Youngstown v. Moore, 30 Ohio St. 133 (1876), is to the same effect.

2 See Scott, Fundamentals of Procedure (1922) 24-33. 3 A preliminary statement of facts is omitted.

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