57 N.Y.S. 275 | N.Y. Sup. Ct. | 1899
The defendants claim that the action is for damages for trespass to land, and that as part of the land is in St. Law- rence county they are entitled to have the action tried there under that part of section 982 of the Code of Civil Procedure which requires every action to procure a judgment “ annulling or otherwise affecting an estate, right, title, lien or other interest in real property, or a chattel real ”, to be tried in the county where such land or chattel real is situated. The action of trespass quaere clausum fregit was and is, as its name implies, an ordinary method of trying title to land, and is therefore local to the county in which the land is situated. But this is not such an action. It is a suit in equity to restrain the continuance of a nuisance, viz., the addition to the height of the old dam, which causes the water of Tupper Lake to rise and overflow the plaintiff’s land; and as an incident the plaintiff asks that his damages be assessed.
If this be an action “ for a nuisance ” within the said section, the nuisance, viz., the dam, is in Franklin county, and no demand was made for a change to that county. But “ an action for a nuisance ”, as .mentioned in the said section, is the common law “ action for a nuisance ” viz., for damages for and abatement of a nuisance, mentioned in section 968, and in which the parties are entitled to a jury trial, whereas the present is an equitable action, in which there is no right to a jury trial (Cogswell v. The Railroad Co., 105 N. Y. 319). The parties are not entitled to'a jury trial in an action which belongs to equity, unless by some statute provision. There were and are no juries in chancery.
If an equitable action for a judgment to take down and restrain the continuance of a dam is one affecting title or interest in real property, such real property, viz., the dam, and, so far as appears, any land to which it is appurtenant or an easement, is in this case in Franklin county.
The other, ground of the motion is “ the convenience of witnesses ■ and the ends of justice ” (Code, sec. 987). The moving papers fall so far short of complying with the rules in respect of the convenience of witnesses that it does not seem that this part of the motion is relied on. I do not understand that the “ ends of justice ” may be separately considered. The statute couples together the two things as -one, viz., “ the convenience of witnesses and the
The motion is denied.
