16 Utah 398 | Utah | 1898
After a statement of the case as above,
delivered the opinion of the court:
Counsel for the appellants insist that this action was properly brought in Millard county, because the dams and ditches of the plaintiffs, and lands to be irrigated by means of the dams and ditches, are situated in that county, and this regardless of the fact that the principal place of business and residence of the defendants, and their dams and ditches, were in Sanpete county. The 'respondents, it seems, contend that the cause of action set up consists of certain trespasses on real property situated in Sanpete county, and have challenged the jurisdiction of the district court of Millard county to try the cause, by a motion to dismiss the suit, maintaining that under section 5, art. 8, Const., it should have been brought in Sanpete county, where the alleged wrongful acts of the defendants are stated to have been committed. It is further contended, on behalf of the respondents, that Section 14, c. 52, p. 219, Sess. Laws 1897, is in conflict with that section of the constitution, and is invalid; and, if their theory be correct, the validity of sections 3181, 3192, 3468,'Comp. Laws Utah 18S8, will also be drawn in question. The constitutional
“The word 'business’ was used as a general term, to include causes of action and all other business which might arise in any county, and the manifest intention was that all suits, civil and criminal, should be brought, and the cases tried, in the county in which the causes of action arose, unless a change of venue should be taken in such cases as might be provided by law.”
That a case must be, commenced in the county where the cause of action arose is therefore no longer open to question in this state, but this court has not yet decided rvhere a case, like the one at bar, shall be commenced, in which it appears that certain acts complained of as wrongful were committed in one county and caused injury in another. The legislature has provided, in section 14, above mentioned, that, upon bringing a suit for the “protection of rights acquired to water, the plaintiff may make any or all persons who have diverted water from the same stream or source,” and claim rights adverse to him, “parties to such action,” and settle the priorities and rights of all the parties in one suit; and, in such case, if damages are claimed for a wrongful diversion of such water, judgment may be entered therefor, for or against one or more of the plaintiffs, or for or against one or moré of the defendants. In an action “concerning joint water rights, or joint rights in water ditches,” where no partition is asked, the court may determine the “controversy as if the same were several as well as joint.” Evidently, under this provision of the statute, persons claiming water
So-, many actions, in which it is not sought directly to recover real property, are local, at the common law, because they arise by reason of some local right or interest, or out of some local subject, such as the common-law action of waste, trespass quare clausum fregit, trespass on the case for injuries to things real, as for obstruction or diversion of ancient water courses, nuisances, waste, etc., to houses, lands, water courses, right of way, or other real property. In Watts v. Kinney, 23 Wend. 484, it was said: “It appears to be conclusively settled that an action on
The general, doctrine ht common law, no doubt, is that an action for injury to real property, as trespass, or case for nuisance, is local, and must be commenced within the county or district in which the land lies. Where, however, an act has been committed in one county or district, which caused injury to realty in another, suit may be brought in either. In such case the cause of action may be said to have arisen in either county. In Gould, Pl. p. 105, § 108, referring- to actions local, the author says: “If, however, a tortious act, committed in one county, occasions damage to land or any other local subject, situate in another, an action for the injury thus occasioned may be laid in either of the two counties, at the choice of the party injured. Thus, if, by the diversion or obstruction of a water course in the county of A, damage is done to lands, mills, or other real property in the county of B, the party injured may lay his action in either of those two counties.” In Bulwer’s Case (7 Coke, 2b) the law on this subject is stated thus: “When one matter in one county is depending upon the matter in another county, there the plaintiff may choose in which county he will bring his action. * * . * In all cases where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, there the plaintiff may choose to bring his action in which of the counties he will.” Among the examples given in the case is this: “If a man doth not repair a wall in Essex, which he ought to repair, whereby my land in Middlesex is drowned, I may bring my action in Essex, for there is the default, as is adjudged in 7 Hen. IV. pl. 8, or I may bring it in
Some of the decisions hold that, in cases of this character, the action must be brought in the county or state where the resulting injury occurred. Thompson v. Crocker, 9 Pick. 59; Eachus v. Trustees, 17 Ill. 534; Thorn v. Maurer, 85 Mich 569; Deacon v. Shreve, 23 N. J. Law 204.
While these cases do not militate against, but support, the venue as laid in the case at bar, still we are of the opinion that the doctrine hereinbefore stated is decidedly supported by the weight of authority; and this case comes clearly within that doctrine, as will appear from an examination of the facts.
As has been observed, an action is “the lawful demand of one’s right,” and such lawful demand is made because of a wrong done and an injury suffered. The wrong and the injury are both necessary elements, and the absence of either oné of them would be fatal to a suit. The two elements must therefore exist and unite in order to form a good cause of action. The plaintiffs herein claim that the defendants constructed dams and ditches in Sanpete county, and by means thereof wrongfully diverted water from the Sevier river, and that, as a sequence, the plaintiffs were deprived of the water which of right belonged to them, and with which they were entitled to fill their
In Lower Kings River Water-Ditch Co. v. Kings River & Fresno Canal Co., supra, a case somewhat similar to the one at bar, it was said: “The acts complained of are preventing water from flowing in plaintiff’s ditch. The'' ditch is located in both counties. Therefore the subject of the action-is in both counties, and the action-might
Nor are the common-law principles invoked in the decision of this case opposed to the clause of section 5, art. 8, of the constitution, hereinbefore quoted. While, under that provision,. an action must be commenced in the county where the cause arises, still it does not designate the county in which an action shall be brought, when the essential facts necessary to the plaintiff’s recovery arise in two or more counties, except that the bringing of the action is, doubtless, limited to a county where the wrong was committed, or where the effects of the wrong became manifest by the resulting injury. The provision of the constitution not being clear as to the venue in süch a case, we have a right, and it is our duty, to resort to the common law to ascertain from that great fountain, if possible, the true meaning of the terms of the fundamental law, and, for such purpose, its provisions should be understood and construed in the light and with the assistance of the common law, and with the fact in view that its rules are still in force, except as controlled by the constitution. Cooley, Const. Lim. p. 75. Nor is section 3193, Comp. Laws Utah, 1888, as amended in chapter 17, p. 90, Sess. Laws 1896, void as being in conflict with section 5, art. 8, Const. Its language is as follows: “Actions for
This section was incidentally considered in Konold v. Railway Co., supra, and we then said there appeared to be nothing in it, or its subdivisions, “which is in contravention of the constitution,” except that the clause referring to the “power of the court to change the place of trial’’’ must be limited to actions commenced in the proper county. We now reaffirm what was said there, it being in harmony with the views herein expressed. With the limitation as to the change of the place of trial, the section is not in excess of legislative authority. It, as will be observed, does not expressly provide where the actions referred to therein shall be commenced, but in accordance with the rules of the common law, and in the absence of constitutional restraint, it is therein specified that actions respecting realty shall “be tried in the county in w7hich the subject of the action, or some part thereof, is situated”; which means that an action affecting the realty shall be tried in the county where the business or the cause arises, or, if the cause of action arises in more counties than one, then in either of such counties.
Counsel for the respondents ingeniously argue that