of the State"? The amendments in question were voted upon at town elections, and although they received a majority of the votes cast upon the particular questions, they did not receive a majority of all the votes cast at the same time for town officers. The majority of the court held that they must at least receive a majority of all the votes cast at the same election. The following are the authorities in point:

Taylor v. Taylor, 10 Minn. 107, held that the constitutional provision, art. XI, § 1, that all laws providing for changing county seats shall be submitted to the electors of the county at the next general election, and "adopted by a majority of such electors," simply requires a majority of the electors present and voting at such election. It did not appear in this case that the law in question did not receive a majority of all the votes cast on any subject at that election, but it did appear that it did not receive a majority of all the legal voters of the county. The court said: "The plaintiff claims that this section requires an absolute majority of those qualified to vote in the county at the time of the election. construction is perhaps in accordance with the letter of the Constitution, but it leads to such practical inconvenience, hardship, and absurdity, we cannot believe it to be in accordance with the spirit and meaning of that instrument." The court rely on Tennessee and Illinois decisions, which we shall notice below. Berry, J., dissented. State v. Mayor, 37 Mo. 270, and State v. Binder, 38 id. 450, hold the same doctrine as to measures submitted at special elections.

This

In Bayard v. Klinge, 16 Minn. 249, it was held that under the provision in art. XI, § 1 of the Constitution, that all laws for removal of county seats shall, before taking effect, be submitted to the electors of the county, at the next general election after the passage thereof, and be adopted by a majority of such electors, it is not competent for the Legislature to provide that such a law shall take effect and be in force after its submission to the electors of said county at the next general election after the passage thereof, and its adoption by a majority of such electors voting thereon, unless that majority is also a majority of all the votes cast. The court hold that the words in the Constitution, "a majority of such electors" cannot be construed to mean simply a majority of those voting upon the particular question. The court distinguish Taylor v. Taylor as follows:

"The majority of this court, as then constituted, held in that case, that inasmuch as a literal construction of the constitutional provision above quoted, would in their opinion involve great hardship and absurdity, they were therefore to deviate a little from the received sense, and literal meaning of the words, and interpret it in accordance with what appeared to be the intention of its framers. Hence, considering that the Constitution requires such law to be submitted to the electors at a general election; that the returns would show the actual number of persons present at such election, voting on any question; that as a general rule it is the duty of every

elector to attend and vote at such general election, and that the law presumes that every citizen does his duty, they hold, that in the eye of the law, those present and voting at such election, not on any such question then submitted, but on any question then to be voted on, constitute the electors of the county, in the sense in which art. XI, § 1 of the Constitution, uses those words; that is to say, that body, the adoption by a majority of whom of such a law as is there referred to would be the adoption thereof by a majority of the electors of the county." Stress is laid upon the fact that while section 1 requires a majority, upon the particular question, of all those voting at the general election, section 2 only requires a majority of those voting upon the particular question. The court observe: "A material link in the chain of reasoning by which the majority of the court in Taylor v. Taylor et al. arrived at their conclusion is, that as it is the duty of every elector to attend and vote at such general election, the law, which presumes that every one does his duty, presumes that he did so attend and vote. Granting, however, not only that it is his duty so to attend and vote on those questions then arising under the general law, in which every citizen is alike interested; but also on matters like that before us, of purely local interest, which by any special law are then to be submitted; (a proposition, which, as at present advised, appears to us to be untenable;) still, the further presumption that he did vote on such particular question could not arise in the face of the provision of the law now before us, that it shall take effect if adopted by a majority of those voting thereon, for the law of itself contemplates herein the existence of electors who will not vote at all on the questions submitted by it; and of course, no such presumption could arise in any case, in which the record, as in the case above supposed, showed on its face that they did not so vote. It is suggested, however, that though it should appear by the record that all the electors have not voted on the question, those who have not will be deemed to acquiesce in the action of the majority. The principle upon which such a presumption is to be based is not stated, and we cannot perceive that there is any. The respondent says, indeed, that a man's inaction is not to be counted as a vote with the minority, but that is no reason why it should be counted with the majority. It is only another way of saying that it should be." The court rely on State v. Winkelmeir, infra, and distinguish Gillespie v. Palmer, on account of the different wording of the constitutional provision. This holding was followed in Everett v. Smith, 22 Minn.

53.

In State v. Winkelmeir, 35 Mo. 103, an act of the Legislature gave permission to municipal corporations in St. Louis county to allow the sale of refreshments on any day in the week, when authorized by a majority of the legal voters of the respective cities. A vote for such permission received 5,000 affirmative to 2,000 negative votes out of a vote of 13,000 cast for city officers on the same day. Held, that the measure had not received a majority within

the intent of the law. No authorities were cited, and the court simply observed: "The act expressly requires a majority of the legal voters; that is, of all the legal voters of the city, and not merely of all those who might at a particular time choose to vote upon the question."

Louisville & Nashville R. R. Co. v. County Court of Davidson County, 1 Sneed, 637, was cited in and strongly resembles Taylor v. Taylor. The point decided is, that on a vote as to whether a county will take stock, under a law requiring a majority of the voters of the county, a majority of those attending and voting is conclusive. The court said: "How can we know how many legal voters there are in a county at any given time ? We cannot judicially know it. If it were proved that the vote were much larger than in the last preceding political election, or by the last census, by the official rereturns, or the examination of the witnesses, it would be only a circumstance, certainly not conclusive. But we put our decision of that question upon a more fixed and stable ground. When a question or an election is put to the people, and is made to depend on a vote of a majority, there can be no other test of the number entitled to vote but the ballot-box. If in fact there be some or many who do not attend and exercise the privilege of voting, it must be presumed that they concur with the majority who do attend, if indeed they can be known at all to have an existence. Certainly it would be competent for the Legislature to prescribe a different rule. But when they simply refer a question to the decision of a majority of the voters of a county,' it cannot be understood that they mean any thing more than those who see fit to exercise the privilege. Great inconvenience would result from the opposite rule." This decision is therefore not in point, but the language has some force as a dictum, for the argument respecting those who stay away from an election is perfectly applicable to those who attend but do not choose to vote on the particular question.

People ex rel. Mitchell v. Warfield, 20 Ill. 159, decides that on the question of relocating a county seat, where the law only authorizes the clerk to canvass the votes cast on the question of relocation, and certify the result, without regard to other votes cast at the same election, he cannot give a certificate which will afford legal evidence that the county seat has been changed in conformity with the requirements of the Constitution. This was an application for mandamus to compel the issue of a marriage license. The law in question applied only to Saline county. The Constitution required a majority of the voters of any county to effect such a change. The election in question was a special election. The court said: "The statute itself cannot be sustained, under the Constitution, if we adhere to its literal expressions, for it requires, in order to relocate the county seat, but a majority of the votes cast on the subject of relocation, whereas the Constitution goes farther, and requires a majority of the voters of the county. The law may be sustained by reading it in the light of the Constitution, and construed as

giving effect to the affirmative vote, when such affirmative vote is by a majority of the legal voters of the county. The Legislature may have assumed, and doubtless did, that all would vote upon the question, and such is the practical effect if we count the votes in the negative, which are silent on the subject. In this mode alone can the law be sustained authorizing township organization, which has been in operation in most of the northern counties of the State since the adoption of the Constitution. It is a question of no small difficulty to determine in what mode it shall be ascertained who are the voters of the county, so as to determine whether a majority have voted in favor of a relocation. The same difficulty arises under the law authorizing township organization. This portion of the Constitution must receive a practical construction. We understand it to assume — and such we believe was the understanding of its framers-that the voters of the county referred to were the voters who should vote at the election authorized by it. If we go beyond this, and inquire whether there were other voters of the county who were detained from the election by absence or sickness, or voluntarily absented themselves from the polls, we should introduce an interminable inquiry, and invite contests in elections of the most harassing and baneful character, if we did not destroy all of the practical bencfits of laws passed under these provisions of the Constitution. We hold therefore that a majority of the legal votes cast at this election is sufficient to determine the question of a relocation of the county seat. See 1 Snced, 692." This decision therefore is like that in Taylor v. Taylor, and is there cited as authority, while the dicta are in harmony with the principal case. Of this decision, the court say in Bayard v. Klinge: “As to the Supreme Court of Illinois, it decides in so many words, that a majority of the legal votes cast at the election, not a majority of those voting on any particular question, is a constitutional majority of the voters of the county; thus counting those who do not vote, in the negative, instead of with the majority."

On the other hand, in Gillespie v. Palmer, 20 Wis. 544, it is held that a legislative act, extending the right of suffrage to colored persons, and conditioned to become a law on receiving "a majority of all the votes cast at the next general election," is adopted upon receiving a majority of all the votes cast on that subject at such election. The constitutional provision was that the right of suffrage might be extended on being "submitted to a vote of the people, at a general election, and approved by a majority of all the votes cast at such election." This is a much stronger decision than any of those which we have cited above, for the Constitution expressly requires, for the adoption of the subject specially designated, "a majority of all the votes cast at such election," and this is construed to mean a majority of all the votes cast on that particular subject. The court said that two other and different contentions were urged: first, that it meant a majority of all the votes on all subjects and for all officers; and second, a majority of all the voters voting. The

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first was said to be manifestly absurd. As to the second, it involved the construction that "votes" and voters " are synonymous; but even if the word were "voters," the same conclusion must be reached. The court said: "Under the provisions of our Constitution, as well as of other Constitutions, persons are elected to a particular office who have a majority of the votes cast—not for the candidates for some other office, but for the candidates for that office. Measures or laws are also declared adopted or rejected according as they receive or fail to receive each a majority of the votes cast for or against it. To declare a measure or law adopted or defeated. - not by the number of votes cast directly for or against it, but by the number cast for and against some other measure, or for the candidates for some office or offices not connected with the measure itself would not only be out of the course of ordinary legislation, but so far as we know, a thing unknown in the history of constitutional law." The foregoing is from the opinion of Downer, J. Dixon, C. J., says that without the words, "at such election," "no one could hesitate," and these words he explains as intended "to exclude the idea that a majority of votes cast at any other than a general election should suffice." He continues: "But in neither case, in my judgment, does the addition afford the slightest ground for saying that the framers intended that votes cast at the same election upon other subjects should be counted either for or against the law for extending the right of suffrage. Such a provision in the Constitution of a State would be an anomaly in our system of government. It would be contrary to the fundamental American idea, which is that in all popular elections the will of a majority of the voters voting upon any subject or question submitted shall prevail." No authorities are cited.

Judge Cooley, in "Constitutional Limitations," in a note, citing the above cases, without further consideration, says: "This must be understood to mean a majority of those voting at the election on any question."

The principle of Taylor v. Taylor is expressly approved in County of Cass v. Johnston, 95 U. S. 360, which holds, in regard to a township subscription for railroad stock, that a majority of those voting at a special election satisfies the requirement of the Constitution that such measures must receive the vote of two-thirds of the qualified voters of the town, etc. In regard to State v. Winkelmeir, the court said: "Taking the opinion as a whole, it is apparent that there was no intention of deciding that resort must be had elsewhere than to the records of the election at which the vote was taken to ascertain whether the requisite majority had been obtained." Mr. Justice Bradley dissented, and his opinion must be ranked on the side of the principal

case.

It thus appears that the Indiana decision is supported by a majority of the authorities on the point in question. It may well be doubted that it has the better foundation in principle. There seems to be no logical escape from the reasoning of the Wisconsin court, and we prefer that doctrine.

JURISDICTION OF ACTIONS FOR INJURIES TO LANDS SITUATED IN A FOREIGN STATE.

"The law is unknown to him who knoweth not the reason thereof."

We purpose to show that the courts of New York State have jurisdiction of actions for injuries to land situated in a foreign State or country. For this purpose it is necessary to trace the common law of venue to its fountain-head: "from the first rough sketches to more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced."

It is very curious and instructive to trace the progress of the English law respecting the locality of actions. During the earliest ages juries were selected for the very reasons which would now argue their unfitness, namely, their personal acquaintance with the parties and the merits of the cause; and few rules of law were enforced with greater strictness than those which required that the venue, visne, or vicinetum, in other words, the neighborhood whence the juries were to be summoned, should be also that in which the cause of action had arisen; in order that the jury who were to determine it principally from their own private knowledge, and who were liable to be attainted if they delivered a wrong verdict, might be persons likely to be acquainted with the nature of the transaction which they were called upon to try. In order to effect this end the parties litigant were required to state in their pleadings with the utmost certainty, not merely the county, but the very venue, i. e., the very district, hundred, or will, within that county, where the facts that they alleged had taken place, in order that the sheriff might be directed to summon the jury from the proper neighborhood in case issue should be taken on any of such allegations. It followed, of course, that a new venue was designated as often as the allegations of the parties litigant shifted the scene of the transaction from one part of the country to another. This was, however, soon found to produce great inconveniences, for in mixed transactions, which may happen partly in one place and partly in another, it was extremely difficult to ascertain the right venue, and as the number of these transactions increased with increasing civilization, these difficulties about determining the place of trial became of constant occurrence and soon induced the courts, in order to relieve themselves, to take a distinction between transitory matters, such as a contract which might happen anywhere, and local ones, such as a trespass to the realty, which could only happen in one particular place, and they established as a rule that in transitory matters the plaintiff should have a right to lay the venue where he pleased and the defendant should be bound to follow it, unless indeed his defense consisted of some matter in its nature local and which must therefore, ex necessitate rei, be alleged to have taken place where it really happened. But where a matter alleged in pleading was of a local description, the venue for the trial of such matter could be nowhere but at the very place where it was alleged in pleading to have happened. 1 Smith's Lead. Cas. 781.

Independently of some legal fiction, the jurisdiction of a common-law court could never extend to a cause of action accruing beyond the limits assigned to the running of its writs. This will be sufficiently evident if we reflect, that while the common law requires that the truth of every material fact traversed should be tried by a jury of the place where it is alleged to have happened, the rules of pleading equally demand that such an 'allegation of place should accompany every material averment. In order to obviate this difficulty the English courts permitted the plaintiff, in certain

actions which were regarded as transitory in their character, to allege a fictitious place as the one where the cause of action accrued, and obliged the defendant to follow the place tnus assigned through all succeeding averments of a similar nature. In this way the courts obtained the power of considering transitory actions, even when their cause happened beyond the limits of the kingdom. But when the action was local in its nature it still remained necessary to aver all material facts as happening where they actually occurred, and hence no venire could be issued and no trial had when the venue thus laid was beyond the reach of the process of the court. In this manner jurisdiction was acquired over all transitory actions wherever the cause which gave them birth happened, while no cognizance could be taken of local actions save when a jury of the county could be summoned to try them. Id. 789, American note.

It becomes necessary, therefore, to a correct understanding of the modern law of venue, to ascertain what actions are local and what transitory. Where the subject or thing to be recovered is in its nature local the action is local. Of this class are all real actions-actions of waste, when brought on the statute of Gloucester (6 Edw. 1), to recover, together with damages, the locus in quo, or place wasted-and actions of ejectment. All these are local because they are brought to recover the seizin or possession of lands which are local subjects. And various actions which do not seek the direct recovery of lands are also local by the common law, because they arise out of some local subject or the violation of some local right or interest. Within this class of cases are many actions in which only pecuniary damages are recoverable. Such are the common-law action of waste and trespass quare clausum fregit; as likewise trespass on the case for injuries affecting things real-as for nuisances to houses or lands-disturbances of rights of way, or of common, obstruction or diversion of water-courses, etc.

No action will lie in one sovereign State for the recovery of lands or tenements lying in another; since a judgment in the action could by no possibility be enforced. Nor in general could any personal action be maintained in one sovereign State for a trespass, nuisance, or other injury to real property, lying in another, such actions being local (as already stated) because they arise out of local subjects. But it has been held that this last rule admits of an exception, where a local cause of action requiring a reparation in damages only arises in a foreign country in which there are no regular courts of judicature, and in which of course no legal remedy can be obtained. In such cases this exception has been allowed in some instances from necessity, to prevent a failure of justice. And as the judgment in this class of cases is for damages only, there is indeed no practical difficulty in enforcing it, as there would be if the action were brought for the recovery of a specific local subject situated in a foreign country. Thus where certain houses erected by the plaintiff on the coast of Nova Scotia had been illegally demolished by the defendant at a time when no regular administration of justice had been established in that province, and an action of trespass for that injury was brought in the English court of King's Bench, Lord Mansfield held the action to be maintainable upon this principle, namely, "that the reparation here was personal and for damages, and that otherwise there would be a failure of justice, for it was upon the coast of Nova Scotia, where there were no regular courts of judicature; but if there had been, Captain Gambier might never go there again, and therefore the reason of locality in such an action in England did not hold. I quoted a case of an injury of that sort in the East Indies, where even in a court of equity, Lord Hardwicke had directed satisfaction to be made in damages; that case before Lord Hardwicke was not much contested;

but this case before me was fully and seriously argued and 1,000l. damages given against Captain Gambier. I do not quote this for the authority of my opinion, because that opinion is very likely to be erroneous; but I quote it for this reason: 1,000l. damages and costs were a considerable sum. As the captain had acted by the orders of Admiral Boscawen, the representatives of the admiral defended the cause and paid the damages and costs recovered. The case was favorable, for what the admiral did was certainly well intended, and yet there was no motion for a new trial." "There is a formal and substantial distinction as to the locality of trials. I state them in different things; the substantial distinction is where the proceeding is in rem, and where the effect of the judgment cannot be had if it is laid in a wrong place. That is the case of all ejectments where the possession is to be delivered. With regard to matters

*

* *

that arise out of the realm, there is a substantial distinction of locality too; for there are some cases that arise out of the realm which ought not to be tried anywhere but in the country where they arise. As if an action were brought relative to an estate in a foreign country where the question was a matter of title only and not of damages, there might be a solid distinction of locality. But there is likewise a formal distinction, which arises from the mode of trial, for trials in England being by jury, and the kingdom being divided into counties, and each county considered as a separate district or principality, it is absolutely necessary that there should be some county where the action is brought in particular, that there may be a process to the sheriff of the county to bring a jury from thence to try it. This matter of form goes to all cases that arise abroad; but the law makes a distinction between transitory actions and local actions. * * So all actions of a transitory nature that arise abroad may be laid as happening in an English county," without taking notice of the foreign place. Mostyn v. Fabrigas, Cowp. 167, 180.

*

In a subsequent case it was held that trespass will not lie in England for entering a house in Canada. Doulson v. Matthews, 4 Durnf. & E. 503. Erskine argued that this was not an action to recover the land, but merely a personal action to recover a satisfaction in damages, which was transitory, and might be tried here. But Buller, J., said: "It is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local actions; it is sufficient for the courts that the law has settled the distinction, and that an action quare clausum fregit is local."

But personal actions, that is to say actions which seek nothing more than the recovery of money, or personal chattels of any kind, are in most cases transitory, whether they sound in tort or in contract, because actions of this class are in most instances founded on the violation of rights which in contemplation of law have no locality. And it will be found true, as a general position, that actions ex delicto, in which mere personalty is alone recoverable, are, by the common law, transitory, except when they are founded upon or arise out of some local subject.

As to actions founded upon leases, the common law established the following general distinction: If the action is founded on privity of contract between the parties, it is transitory, and may be laid in any county, even though the land or subject demised be situated in a foreign country. But if the action is founded on privity of estate it is local and must consequently be laid in the county in which the estate lies. For though money only is recoverable in either case, yet in the former the right of action arises exclusively out of the personal contract, which is in its nature transitory. Whereas in the latter the action is founded on the interest of the parties in the land or property demised,

which is a local subject, and for this reason the action is local.

The following actions, viz., lessor against assignee of lessee, assignee of lessee against lessor, assignee of lessee against assignee of lessor, and assignee of lessor against assignee of lessee, were local. But assumpsit for use and occupation, though substantially an action for rent, issuing out of a real subject, was transitory.

The English common law of venue has been generally adopted and applied by the courts of this country. Thus it has been held that covenant by or against an assignee of the term is local, and cannot be sustained unless the land is within the jurisdiction of the court in which the action is brought (6 Mass. 331; 21 Vt. 52; 3 Serg. & R. 500); even when both parties reside within the State where the suit is brought, while the land lies outside of it, so that a refusal to permit the plaintiff to sue there is virtually to deprive him of all remedy. 6 Gray, 122.

Trespass for injuries to the land is local and must be brought in the county where the land is situated. 2 Humphr (Tenn.) 424; 3 Harris (N. J.), 3; 6 Blackf. (Ind.) 559; 2 Greene (Iowa), 374. And if the land is situated in a foreign State the action cannot be maintained. Livingston v. Jefferson, 1 Marsh's Decis. 203; Watts v. Kinney, 23 Wend. 484; 6 Hill, 82; De Courcy v. Stewart, 20 Hun, 561: Eachus v. Illinois C. Co., 17 Ill. 534.

In Livingston v. Jefferson, Marshall, C. J., said: "It is admitted that on a contract respecting lands an action is sustainable wherever the defendant may be found. Yet in such a case every difficulty may occur that presents itself in an action of trespass. An investigation of title may become necessary, a question of boundary may arise, and a survey may be essential to the full merits of the cause. Yet these difficulties have not prevailed against the jurisdiction of the court. They are countervailed and more than countervailed by the opposing consideration, that if the action be disallowed the injured party may have a clear right without a remedy, in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court. That this consideration should lose its influence where the action pursues a thing not in the reach of the court is of inevitable necessity; but for the loss of its influence where the remedy is against the person and is within the power of the court, I have not yet discerned a reason other than a technical one which can satisfy my judgment. If, however, this technical reason is firmly established, if all other judges respect it, I cannot venture to disregard it. The distinction taken is that actions are deemed transitory where the transactions on which they are founded might have taken place anywhere, but are local, where their cause is in its nature necessarily local. If this distinction is established; if judges have determined to carry their innovation on the old rule no further; if, under circumstances which have not changed, they have determined this to be the limit of their fiction for a long course of time, it would require a hardihood which, sitting in this place, I cannot venture on to pass this limit.

SO

"One of the greatest judges who ever sat upon any bench and who has done more than any other to remove those technical impediments which grew out of a different state of society and too long continued to obstruct the course of substantial justice, was struck with the weakness of the distinction between taking jurisdiction in cases of contracts respecting lands and of torts committed on the same lands that he attempted to abolish it. In the case of Mostyn v. Fabrigas, Lord Mansfield stated that the true distinction to be between proceedings which are in rem, in which the effect of the judgment cannot be had unless the thing lay within the reach of the court, and proceedings against the person, where damages only are

demanded." But in a subsequent case (Doulson v. Matthews) this distinction was repudiated and the old distinction was affirmed.

The Court of Appeals have recently decided that an action to recover damages for cutting down telegraph poles located in a public highway in the State of New Jersey cannot be maintained in the courts of this State. American Union Tel. Co. v. Middleton, 21 Alb. L. J. 295. The decision was placed upon the ground that the telegraph poles, being affixed to the soil, became part of the freehold (citing Electric Tel. Co. v. Salford, 11 Exch. 181), could not be cut down without an entry on the realty, and the only action which could properly be brought would be an action of trespass quare clausum fregit, which could not be maintained here. The case cited by the court does not hold that telegraph poles erected in a public highway become a part of the freehold and belong to the public, or that the company acquires such an interest or property in the soil of the highway that it may maintain an action of trespass quare clausum fregit, but it merely holds this: that a telegraph company is liable to be rated as an "occupier" of land in respect of its wires and posts placed along the line and on the land of a railway company. That the owner of property affixed to the soil of a public highway, under a license from the proper authorities, may maintain an action as for a trespass upon his realty, against a person injuring such property, is, indeed, a rather novel doctrine. As well might it be said that a person affixing a chattel to the land of another, with his permission, may maintain trespass quare clausum against a person injuring the same, while the owner of the land remains in possession. It is immaterial whether the telegraph company had an easement or a mere license, for in either case trespass quare clausum could not be maintained at common law. The court says that the poles could not be cut down without an entry on the plaintiff's realty. Perhaps it would be more correct to say that defendant could not enter upon plaintiff's "realty" until he cut down the poles and stood on the stumps. Perhaps defendant was the owner of the fee of the highway; if so, he had such a possession that he could maintain trespass against a person using the highway in front of his premises for an unlawful purpose. 11 Barb. 390. However, the defendant entered, not upon plaintiff's realty, but upon a public highway, and committed an injury (not to the highway) but to property lawfully placed there. An action on the case for injury to the easement (an incorporeal hereditament), or an action of trover, trespass to personal property, or replevin, would be the proper form of action, where forms of action existed, but trespass to realty would not, unless the plaintiff was the owner or in the actual possession of the land.

In Rogers v. Woodbury, 15 Pick. 156, it was held that redress will not be refused to the injured party, merely because he claims damages for the destruction of a building, unless it appears that he had or claimed such an interest in the soil on which it was erected as to render the building real instead of personal property. Plaintiff declared in trespass for taking and carrying away his "small fish house or camp," and for burning up and destroying his "wooden camp or small house," situated on an island in Maine, and it appeared in evidence that the house or camp was a one-story building without a cellar, used by plaintiff and his men to live in every spring while he carried on the salmon fishery; held, that there was no legal presumption arising from the declaration and evidence, that the property injured was real estate, and that if defendant would oust the court of its jurisdiction, on the ground that the cause of action was local, the burden was upon him to prove that the property was real estate. "If the owner of he land owned the building, it would be parcel of the realty. If he did not, and the owner of the building