By the law of those states of the Union whose jurisprudence is
based on the common law, an action for trespass upon land can only
be brought within the state in which the land lies.
A count alleging a continuing trespass upon land, and the
cutting and conversion of timber growing thereon, states a single
cause of action, in which the trespass upon the land is the
principal thing, and the conversion of the timber is incidental
only, and cannot be maintained by proof of the conversion, without
also proving the trespass upon the land.
Page 158 U. S. 106
A court sitting in one state, before which is brought an action
for trespass upon land in another state, may rightly order the case
to be stricken from its docket, although no question of
jurisdiction is made by demurrer or plea.
The case is stated in the opinion.
MR. JUSTICE GRAY delivered the opinion of the Court.
This action was brought in the Circuit Court of the United
states for the Southern District of Ohio by one Walton,
administrator of the estate of Latimer Bailey, deceased, and a
citizen of New Jersey, against the Marietta Chair Company, a
corporation of Ohio.
The original petition contained two counts, one count alleging
that the defendant on January 1, 1875, and on divers days between
that day and May 4, 1885, in the lifetime of Bailey, unlawfully and
with force broke and entered upon a tract of land in the County of
Pleasants and State of West Virginia, owned and possessed by
Bailey, and, by cutting and hauling timber thereon, cut up,
obstructed, encumbered, and devastated the land, and cut down,
removed, and carried therefrom a large quantity of timber and
converted and disposed of it to the defendant's own use, and the
other count alleging that the defendant, on the days aforesaid,
unlawfully took and received into its possession a large quantity
of logs, the property of Bailey, and then lately cut and removed
from that land, and converted and disposed of the same to its own
A motion by the defendant that the plaintiff be required to make
his complaint more definite and certain was ordered by the court to
"unless the plaintiff amend his petition so as to show that the
trespass complained of was a continuous trespass between the times
mentioned in the petition. "
Page 158 U. S. 107
The plaintiff thereupon, by leave of the court, filed an amended
petition containing a single count alleging Bailey's ownership and
possession of the land and of the timber growing thereon, and that
on January 1, 1875, "and on divers other days from time to time
continuously between that day and" May 4, 1885, sundry persons,
knowing the land and the timber thereon to be Bailey's property,
without any right or authority from him, and at the instance and
for the use and benefit of the defendant, cut down and removed, and
sawed into logs, a large quantity of the timber, and the defendant,
knowing the logs to be cut from the land, and both land and logs to
be Bailey's property, took the logs into its possession and
converted them to its own use.
After the filing of an answer denying the allegations of the
amended petition, and before the case came to trial, the court,
upon Ellenwood's suggestion that Walton's letters of administration
had been revoked, and Ellenwood had been appointed administrator in
his stead, entered an order reviving the action in the name of
Ellenwood as administrator, but afterwards adjudged that this order
be set aside, and that the action be abated and stricken from the
docket. This writ of error was thereupon sued out in the name of
Walton, and was permitted by this Court to be amended by
substituting the name of Ellenwood. Walton v. Marietta Chair
Co., 157 U. S. 342
Various grounds taken by the defendant in error in support of
the judgment below need not be considered, because there is one
decisive reason against the maintenance of the action.
By the law of England and of those states of the Union whose
jurisprudence is based upon the common law, an action for trespass
upon land, like an action to recover the title or the possession of
the land itself, is a local action, and can only be brought within
the state in which the land lies. Livingston v. Jefferson,
1 Brock. 203; McKenna v.
1 How. 241, 42 U. S. 247
Northern Indiana Railroad v.
Michigan Central Railroad,
15 How. 233,
56 U. S. 242
56 U. S. 251
Huntington v. Attrill, 146 U. S. 657
146 U. S.
-670; British South Africa Co. v. Companhia De
(1893) App.Cas. 602; Cragin v. Lovell,
N.Y. 258; Allin v. Connecticut River Co.,
Page 158 U. S. 108
Thayer v. Brooks,
17 Ohio. 489, 492; Kinkead's Code
Pleading § 35.
The original petition contained two counts, the one for trespass
upon land and the other for taking away and converting to the
defendant's use personal property, and the cause of action stated
in the second count might have been considered as transitory,
although the first was not. McKenna v. Fisk,
Williams v. Breedon,
1 Bos. & Pul. 329.
But the petition, as amended by the plaintiff on motion of the
defendant and by order and leave of the court, contained a single
count alleging a continuing trespass upon the land by the
defendant, through its agents, and its cutting and conversion of
timber growing thereon. This allegation was of a single cause of
action in which the trespass upon the land was the principal thing,
and the conversion of the timber was incidental only, and could not
therefore be maintained by proof of the conversion of personal
property without also proving the trespass upon real estate.
Cotton v. United
11 How. 229; Eames v. Prentice,
Cush. 337; Howe v. Wilson,
1 Denio 181; Dodge v.
108 N.Y. 445; Merriman v. McCormick Co.,
Wis. 142. The entire cause of action was local. The land alleged to
have been trespassed upon being in West Virginia, the action could
not be maintained in Ohio. The circuit court of the United states
sitting in Ohio had no jurisdiction of the cause of action, and for
this reason, if for no other, rightly ordered the case to be
stricken from its docket, although no question of jurisdiction had
been made by demurrer or plea. British South Africa Co. v.
Companhia De Mocambique,
(1893) App.Cas. 602, 621; Weidner
26 Ohio St. 522; Youngstown v. Moore,
Ohio St. 133; Rev.Stat. Ohio, § 5064.