99 P. 393 | Cal. Ct. App. | 1908
This is an appeal from an order denying a motion for a change of the place of trial from Merced county to the city and county of San Francisco.
The motion was made upon the ground that the said city and county is the place of residence of defendants.
The order is sought to be upheld for the reason that the action is local in its nature, relating to an injury to real property situated in said Merced county.
The question is to be determined by a consideration of the framework of the complaint and of sections
The latter section provides that "In all other cases, the action must be tried in the county in which the defendants or some of them reside at the commencement of the action."
It is obvious, therefore, that the general rule is, as contended for by appellants, that the action must be tried in the county wherein resides the defendant, and the burden is upon him claiming otherwise to show that the case is within the exception. *320 This the complaint clearly discloses, so it is affirmed by respondent and denied by appellants.
The gravamen of the charge against defendants is contained in the fourth paragraph of the first count of the complaint as follows: "That on or about the 20th day of June, 1907, said defendants carelessly and negligently set out a fire on the property so owned by them . . . in the County of Merced and said fire so negligently and carelessly set out by said defendants spread from the land so owned by defendants on to the land so owned by plaintiff and then and there burned and destroyed a house and barn upon said land and owned by plaintiff, to the damage of plaintiff in the sum of fifteen hundred dollars." The complaint contains two other counts, but they vary simply in the method of alleging the negligence of defendants in relation to the fire. The purpose of this was to bring the case within different statutory provisions upon the subject which we deem unnecessary to the discussion. It is clear, then, that the action is for damages caused by the destruction by fire of a house and barn belonging to plaintiff and located on his land.
The first inquiry is: Are the house and barn real property? The answer is found in the statutes. Section
The house and barn were buildings, and, while not expressly alleged, we must assume, what is usual and a matter of common knowledge, that they were permanently resting upon the soil. InCommercial Bank v. Pritchard,
Again, plaintiff alleged that it was the owner and in possession of a certain parcel of land, describing it, "together with a house and barn and other improvements thereon." It, therefore, at least inferentially, averred that the buildings were a part of the land. We have a case, then, where the defendants are accused of having destroyed a part of plaintiff's land to its damage in the sum of $1,500. If the destruction of a part of real property, thereby damaging the owner, is not an injury to real property, then it is impossible to conceive of such a contingency. The cause of action arises from this injury, the purpose of the suit is to redress it, and it necessarily follows, if effect is to be given to the legislative will, that the trial must take place where the land is located, that is, in Merced county.
We are not without instructive suggestions on this subject from our supreme court. In Lower Kings River etc. Co. v. KingsRiver etc. Co.,
In City of Marysville v. North Bloomfield G. M. Co.,
Drinkhouse v. Spring Valley Water Works,
It is said by the court, through Chief Justice Beatty: "That the sole object and purpose of the action is to prevent a threatened injury to real property is clear," and it is further held that there is no distinction in this respect between an action to prevent an injury to the realty and one for damages in consequence of an injury already consummated. The language is: "The injury is the same, whether threatened or completed, and the privilege accorded to the plaintiff to prevent the injury by injunction ought not to be held to give him the right to have the trial in a county where the cause would not have been triable if he had waited the completion of the injury before seeking redress." To the same effect is Last Chance etc.Co. v. Emigrant Ditch Co.,
But appellants contend that "an action to recover the value of the buildings burned and destroyed through defendants' negligence in handling the fire on their own land is not an action for trespass upon real property," and quite a number of cases are cited in support of the position, among which arePhoenix Ins. Co. v. Pacific Lumber Co.,
But it is clear that the Hicks case and the others cited have no application here, as the court was dealing with an entirely different section of the code and altogether different facts. It might be proper to resort to the common law to determine the meaning of the term "trespass," but it is hard to understand why we should go to such a source to find out what the legislature meant by "an injury to real property." *323
It is unimportant whether this action is trespass or on the case as known at the common law, since no question of the statute of limitations is involved. The act of the defendants in burning the property may not imply an actual physical invasion of plaintiff's land, but it is too clear for argument that said act did injure the land.
Some other cases are cited by appellant to the effect that where fixtures are severed from the land, asported and converted or destroyed, the action for damages is not local but personal. For instance, in McGonigle v. Atchison,
But, as pointed out by respondent, that case and the others cited are entirely dissimilar to this, because here the buildings were not severed or removed and afterward converted, but the damage was done to the property while a part of the realty. Such damage could only be incurred on the land and the action is therefore local.
All of appellants' points and authorities have been examined with care, but it is deemed unnecessary to pursue the discussion further.
The order is affirmed.
Chipman, P. J., and Hart, J., concurred. *324