CHAPTER VII GENERAL PRINCIPLES (Concluded)—CONFLICT OF LAWS 59. Local and Transitory Torts Distinguished. 60. Transitory Torts-Governing Rules. TORTS GENERALLY TRANSITORY-LOCAL TORTS 59. Redress is in general not confined to the courts of the state in which the cause arose, though there are a few exceptions where the action is regarded as purely local. Redress is usually sought in the courts of the very state in which the wrong was committed. The injured party may, however, desire to bring his action elsewhere, and when he will be permitted to do so and under what limitations are now to be considered. Local and Transitory Actions At the outset, a division must be made into local and transitory actions. In the former, the action could have arisen in one place only and redress must be sought there, and there alone. The latter is founded upon a transaction which might have taken place anywhere and, subject to exceptions hereafter laid down, recovery may be had in a foreign tribunal. Actions for trespass or other injuries to real property, including such torts as waste, the ob 1 "The distinction taken is that actions are deemed transitory where the transaction on which they are founded might have taken place anywhere, but are local where their cause is in its nature necessarily local." Livingston v. Jefferson, 1 Brock. 203, 209, Fed. Cas. No. 8,411, per Marshall, C. J. 2 Allin v. Connecticut River Lumber Co., 150 Mass. 560, 23 N. E. 581, 6 L. R. A. 416; Dodge v. Colby, 108 N. Y. 445, 15 N. E. 703; Niles v. Howe, 57 Vt. 388; Bettys v. Milwaukee & St. P. R. Co., 37 3 Cragin v. Lovell, 88 N. Y. 258. 4 6 struction of highways, the diversion of water courses," and the flooding of lands are necessarily local. Nor does there seem, on principle, to be any distinction between legal and equitable forms of action, since a court of equity, acting in personam, can compel only the doing of an act within its own jurisdiction." On the other hand, assault and battery, false imprisonment," and other injuries. to the person,10 libel and slander,11 malicious prosecution,12 conversion,13 and trespass and injuries to personal property 14 are transitory in their character. 8 Wis. 323; British South Africa Co. v. Companhia de Mocambique (1893) A. C. 602, 63 L. J. Q. B. 70, 69 L. T. Rep. (N. S.) 604. Contra, Little v. Chicago, St. P., M. & O. R. Co., 65 Minn. 48, 67 N. W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421. Code Civ. Proc. N. Y. § 982a, provides that "an action may be maintained in the courts of this state to recover damages for injuries to real estate situate without the state * whenever such an action could be maintained in relation to personal property without the state." 4 Crook v. Pitcher, 61 Md. 510. 5 Watts' Adm'rs v. Kinney, 23 Wend. (N. Y.) 484, affirmed 6 Hill, 82. • Eachus v. Trustees of Illinois & M. Canal, 17 Ill. 534. 7 Thus an action in equity to procure an injunction restraining prospective injuries to real property is local. Ophir Silver Mining Co. v. Superior Court of City and County of San Francisco, 147 Cal. 467, 82 Pac. 70, 3 Ann. Cas. 340; Leland v. Hathorn, 42 N. Y. 547; Northern Indiana R. Co. v. Michigan Cent. R. Co. 15 How. 233, 14 L. Ed. 674. 8 Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53; Smith v. Bull, 17 Wend. (N. Y.) 323; Mostyn v. Fabrigas, Cowp. 161, 98 Eng. Repr. 1021. 9 Henry v. Sargeant, 13 N. H. 321, 40 Am. Dec. 146; Rafael v. Verelest, W. Bl. 1055, 96 Eng. Repr. 621. 10 Roberts v. Dunsmuir, 75 Cal. 203, 16 Pac. 782; Ackerson v. Erie Ry. Co., 31 N. J. Law, 309; Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859. 11 Crashley v. Press Pub. Co., 179 N. Y. 27, 71 N. E. 258, 1 Ann. Cas. 196; Lister v. Wright, 2 Hill (N. Y.) 320; Machado v. Fontes (1897) 2 Q. B. 231, 66 L. J. Q. B. 542, 76 L. T. Rep. (N. S.) 588, 45 Wkly. Rep. 565. 12 Shaver v. White, 6 Munf. (Va.) 110, 8 Am. Dec. 730. 18 Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Tyson v. McGuineas, 25 Wis. 656. 14 Mason v. Warner, 31 Mo. 50S; Laird v. Connecticut & P. R. R. Co., 62 N. H. 254, 13 Am. St. Rep. 564; Hale v. Lawrence, 21 N. J. CHAP.TORTS-16 It has been said that the test is to be found in the subject of the injury, as differing from the means whereby and the mere place at which the injury was inflicted. If such subject be real estate or an easement, as a right of way, obviously the action must be local. On the other hand, if it be an individual, then an injury to his person, or if it be personal property, an injury to the property right, no matter by what means occasioned or where inflicted, is essentially transitory, since the subject has not a fixed, stationary, immovable location. To illustrate: Defendant obstructs a highway. If the action involves the plaintiff's right of user, so that such asserted right becomes the subject of the injury, then the cause of action would be local. But suppose plaintiff has fallen over the obstruction and received injuries, for which he seeks damages. There being no issue here as to his right of user, the cause is not removed from the transitory class merely because the injury was received on a highway through the instrumentality of an obstruction.15 Again, trespass to land being local, but conversion transitory, some difficulty has been experienced where there has been an unlawful severance and appropriation of timber, ore, products of the soil, or the soil itself. The answer must here depend upon the construction to be placed upon the pleadings. Is the gravamen of the action the injury to the realty, or does the plaintiff seek the value of what was removed from the land? Thus in Ellenwood v. Marietta Chair Co.16 it was held by the Supreme Court of the United States that the Circuit Court of Ohio had no jurisdiction of an action for damages for cutting timber from lands in West Virginia, upon the theory that the principal ground of the action was the trespass to the land, the alleged value of the timber being a mere incident." Upon Law, 714, 47 Am. Dec. 190; McKenna v. Fisk, 1 How. (U. S.) 241, 11 L. Ed. 117. 15 Gunther v. Dranbauer, 86 Md. 1, 38 Atl. 33. 16 ELLENWOOD v. MARIETTA CHAIR CO., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913, Chapin Cas. Torts, 122. 17 To the same effect, Ophir Silver Mining Co. v. Superior Court of this ground it was distinguished in the later case of Stone v. U. S.,18 where it was held that an action could be maintained in the courts of the state of Washington for the value of timber cut by a trespasser from public lands in Idaho, since the gravamen of the action was here the conversion of the timber after its severance from the land. 19 Where the severance has been accomplished by a third party, the action for a subsequent conversion by defendant is, of course, transitory.20 Suppose an act is done which causes injury to real property situated in an adjoining state, as where an explosion damages a building across the border. As the subject of the injury is realty, it would seem that, under the test already laid down, the action can be brought only in the state where the land is situated. But here some courts have ingrafted an exception upon the general rule, and have laid down what may seemingly be regarded as an arbitrary doctrine, analogous to that of the criminal law, namely, that suit may be brought in either jurisdiction.21 City and County of San Francisco, 147 Cal. 467, 82 Pac. 70, 3 Ann. Cas. 340; American Union Tel. Co. v. Middleton, 80 N. Y. 408. 18 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127. 19 To the same effect, McGonigle v. Atchison, 33 Kan. 726, 7 Pac. 550; Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Radway v. Duffy, 79 App. Div. 116, 80 N. Y. Supp. 334; Tyson v. McGuineas, 25 Wis. 656. 20 Makely v. A. Boothe Co., 129 N. C. 11, 39 S. E. 582. 21 Smith v. Southern R. Co., 136 Ky. 162, 123 S. W. 678, 26 L. R. A. (N. S.) 927; Mannville Co. v. City of Worcester, 138 Mass. 89, 52 Am. Rep. 261; Armendiaz v. Stillman, 54 Tex. 623; Stillman v. White Rock Mfg. Co., 23 Fed. Cas. No. 13,446, 3 Woodb. & M. 539. TRANSITORY TORTS-GOVERNING RULES 60. If a wrong committed in state A is transitory, and suit has been brought in state B, four different situations may arise. It may be found that for an act or omission of such a character when occurring within its own territorial limits and tested by its own laws (1) Neither state would give redress. (2) Both states would give redress. (3) State A would give redress, but not state B. The first case requires no discussion. Of the second it may be observed that a difference in the remedy will not preclude recovery. Thus, where a cause of action has been created by statute in both states, e. g., for death caused by wrongful act or neglect, it is not required that the two statutes be identical in their terms or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle, and possessing the same general attributes.22 Though redress can ordinarily be obtained only in accordance with the procedure of the forum,23 which will determine the form of action,24 the conduct of the trial, and the rules applicable to the admission and weight of evidence,25 and, so at least one court has held, the amount of the recovery,26 yet in the case of statutory torts the party aggrieved cannot take the benefit of the act without the lim 22 Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48, 38 Am. Rep. 491. Aliter, where they are dissimilar, Slater v. Mexican Nat. R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900. 23 Mexican Cent. Ry. Co. v. Gehr, 66 Ill. App. 173. 24 Whether trespass or case. Henry v. Sargeant, 13 N. H. 321, 40 Am. Dec. 146. 25 Johnson v. Chicago & N. W. Ry. Co., 91 Iowa, 248, 59 N. W. 66; Hoadley v. Northern Transp. Co., 115 Mass. 304, 15 Am. Rep. 106; Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W 664, 34 L. R. A. 503, 59 Am. St. Rep. 859. 26 Dorr Cattle Co. v. Des Moines Nat. Bank, 127 Iowa, 153, 98 N. W. 918, 102 N. W. 836, 4 Ann. Cas. 519. Contra, Pullman Palace Car |