{1} This case requires us to decide where venue lies in a common-law environmental action involving multiple defendants. The trial court, believing that the action involved an interest in land located in Lea County, ruled that venue was improper in Santa Fe County and dismissed the entire case. As we explain more fully below, although Plaintiffs’ claims arise out of alleged injury to real property, Plaintiffs’ claims nevertheless are transitory claims for purposes of our general venue statute. Applying our general venue statute, we affirm in part, and reverse in part.
BACKGROUND
{2} The facts relevant to the issue of venue are straightforward and undisputed. Plaintiffs own and reside on the Monument Springs Ranch in Lea County. Plaintiffs allege that Defendants have engaged in, or are presently engaged in, oil and gas production, disposal, and transportation operations on the property. Plaintiffs allege that Defendants have spilled, leaked, and otherwise released hydrocarbons, salt water, and other substances dangerous to human life and welfare
{3} Defendants Amerada Hess Corporation (Amerada); Chevron, U.S.A., Inc. (Chevron); Dynegy Corporation (Dynegy); Concho Resources, Inc. (Concho); Rhombus Energy Co.(Rhombuf Energy); Arch Petroleum, Inc. (Arch); and Rice Engineering, Inc. (Rice); are all foreign corporations. Defendant Rhombus Operating Co., Ltd. (Rhombus Operating) is a Texas limited partnership. Defendant Primero Operating Co., Ltd (Primero) is a New Mexico corporation, whose principal place of business is in Chaves County. Defendants Rhombus Energy and Rhombus Operating have appointed a Chaves County attorney as their registered agent for service. Defendants Amerada, Chevron, Dynegy, Concho, Arch, and Rice have designated either CT Corporation System, whose address is 123 East Marcy Street in Santa Fe, or Prentice Hall Corporation System, whose address is 121 E. Palace Avenue in Santa Fe, as their registered agents.
{4} Defendants 1 moved to dismiss for improper venue. The trial court dismissed the complaint without prejudice as to all Defendants based on the conclusion that the relief requested by Plaintiffs’ complaint affected an interest in land within the meaning of NMSA 1978, § 38-3-l(D)(l), and that Santa Fe County therefore was an improper venue for an action affecting lands located in Lea County.
DISCUSSION
1. STANDARD OF REVIEW
{5} A motion to dismiss for improper venue raises a question of law, which this Court reviews de novo. See Williams v. Board of County Comm’rs of San Juan County,
2. DOES THIS LAWSUIT INVOLVE LANDS OR AN INTEREST IN LANDS?
{6} New Mexico’s general venue statute is codified at NMSA 1978, § 38-3-1 (1876, as amended through 1988). The principal question presented by this appeal is whether Plaintiffs’ claims involve an interest in lands within the meaning of Section 38-3-1(D)(1). That statute provides as follows: “When lands or any interest in lands are the object of any suit in whole or in part, the suit shall be brought in the county where the land or any portion of the land is situate.”
{7} We begin our analysis by reviewing the historical background of Section 38-3-1(D)(1). See Munroe v. Wall,
Suits instituted by citation shall be brought in the county in which the defendantresides, or in the county in which the plaintiff resides, and the defendant may be found; in cases where the defendant is [not] 2 a resident of this territory such suit may be commenced in any county.
{8} In 1851, the Territorial Legislature enacted a new venue statute. 1865 Rev. Stat and Laws, art. XII, ch. XXVII, § 7 (1851) (the 1851 Act). The 1851 Act provided as follows:
Every person shall be sued in the county in which he lives, except in the following cases, that is to say:
1st. A married woman when liable to be sued, shall be sued in the county in which her husband resides.
2d. When a defendant has inherited an estate concerning which any one may wish to institute a suit, he shall be sued in the county in which the estate is situated.
3d. When a defendant has contracted to perform an obligation in a particular county, he shall be sued in the county in which he has engaged to perform the contract.
4th. When the defendant has committed some crime for which a civil action for damages may be maintained, in such ease he may be sued in the county in which the crime was committed, or wherever he may be found.
5th. In case the defendant may be a transient person, he may be sued in whatever county he may be found.
6th. When suit is brought for the recovery of moveable property, it shall be brought in whatever county the property may be found.
7th. In cases against guardians, curators, executors and administrators, the parties may be sued in the county in which any such persons were appointed to any of said trusts, in the county in which the property in controversy may be found, or in the county in which the defendant may live; it being optionary with the plaintiff.
8th. In cases of delinquencies or frauds in public officers, they may be sued in the county in which the fraud or delinquency occurred, or in which the defendant may be found.
9th. When lands are the object of the suit, it shall be brought in the county in which the lands are situated.
10th. When two or more persons [are] liable to be made defendants in the same suit, if it be in the nature of a transitory action, the suit may be brought in the county in which either of the proposed defendants may reside.
{9} In 1853, the Legislature repealed the 1851 Act, apparently because the ten exceptions had proved “oppressive” to defendants and of “doubtful expediency.” Geck,
All suits, instituted in any of the courts of this Territory, shall be brought in the county in which the defendant resides, or in the county in which the plaintiff resides, and the defendant may be found; and in case the defendant is not a resident of this Territory, such suit may be brought in any county.
1853 N.M. Laws, eh. XXIX, § 4 (the 1853 Act).
{10} In 1876, the Legislature enacted a new venue statute, 1875-76 N.M. Laws, ch. II. (1876) (the 1876 Act). The 1876 Act provided as follows:
Section 1. That all civil actions which may hereafter be commenced in the district courts, shall be brought and shall be commenced in counties as follows, and not otherwise:
First, All transitory actions shall be brought in the county where either the plaintiff or defendant, or some one of them, in case there be more than one of either, resides.
Second, Or in the county where the contract sued on was made or is to be performed, or where the cause of action originated or indebtedness sued on was incurred.
Third, Or in any county in which the defendant or either of them may be found in the Judicial District where the defendant resides____
Second, When the defendant has rendered himself liable to a civil action by any criminal act, suit may be instituted against such defendant in the county in which the offense was committed, or in which the defendant may be found or in the county where the plaintiff resides.
Third, When suit is brought for the recovery of personal property other than money, it may be brought as above provided, or in the county where the property may be found.
Fourth, When lands or any interest in lands are the object of any suit in whole or in part, such suit shall be brought in the county where the land or any portion thereof is situate.
Fifth, Suits for trespass on lands shall be brought as provided in the first section of this act, or in the county where the land or any portion thereof is situate.
Sixth, Suits may be brought against transient persons or non-residents in any county of this territory.
A comparison of Section 38-3-1 with the 1876 Act reveals that Section 38-3-1 is the direct descendant of the 1876 Act.
{11} Common-law courts traditionally maintained a distinction between “transitory” and “local” actions. See Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K.B.1774); Livingston v. Jefferson,
A cause of action was transitory if the transaction on which it was founded might have taken place anywhere; an action was local if the transaction could have happened only in a particular place. When transitory in nature, the action could be brought wherever the defendant could be found and jurisdiction over his person obtained. On the other hand, if the action was local in nature, it could only be brought where the cause of action arose.
77 Am.Jur.2d Venue § 2; see also Livingston,
{12} The common-law treatment of tort actions for injuries to land as local claims appears to have been as much a matter of tradition as of logic. For example, even though an action for damages for trespass to real property was considered local, actions for specific performance of a contract to sell real property or for breach of a lease of real property were considered transitory actions, which could be brought in any court with jurisdiction over the person of the defendant. McKinney, § Il.b. text and notes at 783. In his celebrated opinion in Livingston, Chief Justice Marshall criticized the common-law rule as applied to trespass actions:
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 which 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 have been 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 ease where the 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 within the reach of the court, is of inevitable necessity; but for the loss of its influence where the remedy is against the personand can be afforded by the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment.
Livingston,
{13} Under the Kearny Code, there was no attempt to distinguish transitory and local actions as at common law; instead, in all actions, venue depended upon the residence of the parties.
{14} The 1851 Act appears to have codified a modified common-law approach. For example, the sixth exception limiting the venue of actions to recover moveable property to the county where the property is found, 1851 Act, § 7, ¶ 6, corresponds to the common-law characterization of replevin as a local action. See McKinney, § Il.b. at 779. The ninth exception, applicable “[w]hen lands are the object of the suit” likewise is consistent with the common-law’s characterization of suits to recover land as local actions. See McKinney, § Il.b. at 777. It is less clear whether the Legislature intended the ninth exception to codify the common-law’s characterization of suits to recover damages to real property as local.
{15} The 1853 Act reinstated the Kearney Code’s approach to venue and once again abolished the common-law distinctions between transitory and local actions. The 1853 Act remained in effect for the next twenty-three years.
{16} The 1876 Act involved a substantial reworking of the general venue statute. The relationship of the 1876 Act to common-law venue rules is not entirely clear. Although the 1876 Act refers to “transitory actions,” it does not employ the complementary common-law term “local actions.” In the cases of trespass to land and recovery of moveable property, the 1876 Act is consistent with the common law in providing for venue to be laid in the county where the property is located, McKinney, § II.b. at 777-79, but the 1876 Act clearly departs from the common law in providing for venue in such actions to be laid in the alternative in the same manner as in transitory actions.
{17} In summary, our review of the predecessors to Section 38-3-1 satisfies us that New Mexico has never fully embraced the common-law transitory-local dichotomy. This conclusion is reinforced by a case interpreting the 1876 Act at a time when courts were thoroughly familiar with common-law pleading: Jemez Land Co. v. Garcia,
{18} The trial court dismissed the action for improper venue (which at the time Jemez Land Co. was decided, was considered a jurisdictional defect, see Kalosha,
{19} The Supreme Court affirmed the dismissal, observing that plaintiffs position that venue was proper under the provision for suits alleging trespass to land “would, undoubtedly, be correct if the claim for damages was the sole object of the suit.” Jemez Land Co.,
{20} Jemez Land Co. establishes that a plaintiff may not evade a mandatory venue provision by artful pleading. In most common-law jurisdictions, an action for trespass quare clausum fregit was not a proper method for trying title to real estate. See 21 McKinney, Trespass to Try Title § I; 87 C.J.S. Trespass § 57 (1954) (trespass action not proper means for adjudicating title as between plaintiff and defendant). In a few jurisdictions, such as Texas, an action for trespass could be used to adjudicate title to real property as fully as could be done by an action to quiet title. See 21 McKinney, Trespass to Try Title § I. As noted by the Supreme Court in Jemez Land Co., New Mexico was not among the jurisdictions recognizing trespass to try title as a form of action. Jemez Land Co.,
{21} Although the plaintiff in Jemez Land Co. characterized its suit as a trespass action, the object of the plaintiffs lawsuit, as revealed by its claim for equitable relief, was not merely to recover damages for tortious interference with its property. Through its equitable claim the plaintiff clearly sought to pre-empt any assertion of title by the defendant under color of the 1865 deed. Looking to the substance of the relief requested by the plaintiffs equitable cause of action, which would have had the effect of settling title as between the plaintiff and defendant, the Supreme Court held that the plaintiffs complaint affected an interest in land within the meaning of the 1876 Act.
{22} Jemez Land Co. largely disposes of the argument that venue in the present case is limited to Lea County. Although the 1876 Act has been amended in the intervening decades, the basic structure of the 1876 Act has not been altered. Jemez Land Co.’s observation that a trespass action is not confined to the county where the property is located “if the claim for damages was the sole object of the suit” marks a clear departure from the common-law rule that actions seeking damages for injury to real property are local actions. Jemez Land Co. remains good law and is fully applicable to Section 38-3-1. See Team Bank v. Meridian Oil Inc.,
{23} We note and reject Defendants’ argument that Plaintiffs’ request for injunctive relief converts this case into an action involving an interest in land. It was well-settled at the time of Jemez Land Co. that in appropriate cases an injunction might issue to restrain continuing trespasses and prevent irreparable harm to the plaintiff. See, e.g., Kerlin v. West, 4 N.J.Eq. 449 (N.J.Ch.1844); see generally, 75 Am.Jur.2d, Trespass § 113 (1991). The Supreme Court’s observation in Jemez Land Co. that the plaintiffs trespass action would not have been confined to the county where the property is located “if the claim for damages was the sole object of the suit” was not intended to establish a damages-injunction dichotomy for venue purposes. Rather, the distinction the Supreme Court was making was between actions the object of which is to redress tortious injury to real property (whether through damages or injunctive relief) versus actions that adjudicate title to real property as between the parties. In this regard, we note that subsequent to Jemez Land Co., the Supreme Court has stated that to come within Section 38-3-1(D), the suit must implicate title. Team Bank,
{24} Defendants argue that an interest in lands is involved in the present case because judgment in Plaintiffs’ favor will have the practical effect of limiting Defendants’ use and enjoyment of their oil and gas rights inasmuch as Defendants must modify their prior manner of conducting oil and gas operations on Plaintiffs’ land to avoid further
{25} To summarize, the 1876 Act manifests a substantial departure from common-law rules of venue. Under the 1876 Act, as carried forward in Section 38-3-1, actions seeking damages or injunctive relief for tortious injury to land are transitory actions subject to the venue rules of Section 38-3-1(A). In the case of trespass, the Legislature has included the county in which the land is located as an additional alternative venue.
{26} Plaintiffs were not required by Section 38-3-l(D)(l) to file their action in Lea County.
3. VENUE OF DEFENDANTS WHO ARE FOREIGN CORPORATIONS
{27} Plaintiffs argue that as to Defendants Amerada, Chevron, Dynegy, Concho, Arch, and Rice, who are foreign corporations, venue lies in Santa Fe County pursuant to Section 38-3-1(F) (1955). Plaintiffs rely on the fact that each of these Defendants has appointed a statutory agent with a Santa Fe County address. Defendants respond that their statutory agents, CT Corporation System and Prentice Hall Corporation System, are themselves foreign corporations, and that under the holding of Aetna Finance Co. v. Gutierrez,
{28} Section 38-3-l(F) provides both “a carrot and a stick.” The “stick” is amenability of a foreign corporation to suit in any county, however inconvenient, in the absence of a statutory agent who resides in New Mexico. The “carrot” is the ability of the foreign corporation to avoid statewide amenability to suit by designating a statutory agent who resides in a given county.
{29} Two circumstances convince us that the Legislature did not contemplate the appointment of a foreign corporation as a statutory agent when it enacted Section 38-3-1(F). First, a statutory agent with a definable residence within New Mexico is central to the statutory scheme enacted by Section 38-3-1(F). The appointment of a foreign corporation as statutory agent frustrates the statutory scheme envisioned by the Legislature when it enacted Section 38-3-1(F) in 1955, because a foreign corporation is a nonresident, and, therefore, has no residence within New Mexico. See Aetna Finance Co.,
{30} We recognize that in some circumstances we have found it feasible to harmonize apparent inconsistencies among statutes. See Barela v. Midcon of New Mexico, Inc.,
{31} Construing Subsection 38-3-1(F) consistent with what we have determined to be the original legislative intent, see Hamby v. Gonzales,
4. DOES VENUE AS TO ONE DEFENDANT DETERMINE VENUE AS TO ALL?
{32} Citing Teaver v. Miller,
{33} Under Aetna Finance Co., Defendants Amerada, Chevron, Dynegy, Concho, Arch, Rice and Rhombus Energy do not reside anywhere in New Mexico because they are foreign corporations. It is undisputed that neither Plaintiffs, nor the remaining Defendants, Rhombus Operating and Primero, are residents of Santa Fe County. Teaver is inapplicable because under these facts no party resides in Santa Fe County. Because Teaver-Hamby was the only basis urged by Plaintiffs to support venue in Santa Fe County as to Defendants Rhombus Energy, Rhombus Operating 3 and Primero, our conclusion that Teaver does not apply requires us to affirm the trial court’s dismissal of these three Defendants.
{34} Defendants, citing Naumburg v. Cummins,
{35} Naumburg involved defendants whom the Supreme Court believed were “necessary and indispensable parties.” Id. at 275,
CONCLUSION
{36} We affirm in part and reverse in part. The trial court’s order of dismissal is reversed as to Defendants Amerada, Chevron, Dynegy, Concho, Arch and Rice. The trial court’s order of dismissal is affirmed as to Defendants Rhombus Energy, Rhombus Operating and Primero.
{37} IT IS SO ORDERED.
Notes
. For convenience, throughout we will refer to Defendants and Defendants' arguments collectively.
. The word “not” appears to have been inadvertently omitted from the English version of the Kearny Code. Geek,
. Plaintiffs did not address the issue of how a foreign limited partnership such as Rhombus Operating should be treated for venue purposes. We express no opinion on the issue at this time.