Kraus v. Stewart ( 1920 )

Ethridge, J.,

delivered the opinion of the court.

The appellees, Mrs. A. M. Stewart, her children, and Smith Jackson, residents of Jefferson county, brought suit against appellants for trespass on certain land's, and for the taking of crops thereon, by the appellants in the sum of forty-eight dollars actual damages, and five thousand dollars punitive damages. The land involved is described in the declaration as being in Jefferson county, and as being bound on the south side by a stream called Hays creek, and adjoining the lands of the defendants and separated therefrom by said creek. It is averred that the plaintiffs have always understood and believed that said creek was the line between Franklin and Jefferson counties, and that the plaintiffs claimed and cultivated said land believing it was part, of their lands, setting up title both by deed and by adverse possession.

The defendants filed the general issue and notice under the general issue that they would prove on the trial, in justification of the alleged trespass and injuries : First, that the land and crops involved in the alleged trespass lay in Franklin county and belonged to the defendant Mrs. Bertha Kraus; that they were not committed on plaintiffs lands; that plaintiffs owned and! paid taxes on no land in Franklin county; that Smith Jackson rented or leased from the plaintiffs, at the time of the alleged trespass, the land in Jefferson county, and that Smith Jackson had full notice that the land upon which, the alleged trespass was committed was in Franklin county and was the property of Mrs. Bertha Kraus, and that he (Smith Jackson) took forcible possession of said land and planted a crop of corn on the same; that Mrs. Kraus through her agent prosecuted said Smith Jackson for trespass, but, notwithstanding the notice and prosecution, Jackson continued trespassing on the land and made a crop thereon, and by virtue of his trespass had no legal or equitable right to the crop; that Smith Jackson having-rented the land from the plaintiffs in Franklin county, and plaintiffs owning no land in Franklin county, if the trespasses were committed on lands in Franklin county no recovery can be had on the cause.

It appears from the evidence that the calls of the plaintiff’s deed embrace land bounded on the south by the line between Jefferson and Franklin counties, but that plaintiffs had cultivated and used the strip of land in controversy, claiming the creek to be the boundary, for fifteen or twenty years, and that it was generally understood that the said land belonged to I. D. Stewart in his lifetime, and to plaintiffs A. M. Stewart and children after his death, and that they had rented the lands in question from year to year to tenants who had cultivated the same and paid rent thereon to the Stew-arts. It appeared that the land in Jefferson county owned by the Stewarts and the stripi of land in Franklin county in dispute adjoined the lands in Jefferson county and constituted one field or inclosure, a tenant cultivating over and across the county line and using it as one tract of land.

The proof for the* defendants showed that one of plaintiffs’ tenants had knowledge of the claim of the defendants, and that the defendants had rented1 the strip to the mother-in-law of such tenant, who had permitted the tenants of the Stewarts to cultivate such land permissively, but no notice thereof was brought to the attention of I. D. Stewart or to plaintiffs after his death until recently.

The proof shows that the party in possession at the time of the trespass was a tenant of the Stewarts, and that he was in possession under claim of right, and that the defendants had been notified several times by letter by Mrs. Stewart not to interfere with her tenant or to enter the said premises, butt to proceed in a legal manner. When the crop of corn grown on the land was almost ready to harvest, the defendants went thereon and over protest gathered the corn and hauled it away.

There was a peremptory instruction for the plaintiffs for the value of the com, and an instruction reading as follows:

“The court instructs the jury for plaintiffs in this case that, if they believe from the evidence that the conduct of the defendants in this case was marked by oppression or willful wrong, then they are not confined to the award of actual damages, but may also award punitive damages in such sum not exceeding five thousand dollars as they may think warranted by the proven facts and circumstances.”

There was a verdict for the plaintiffs for twenty-six dollars actual damages, and for one thousand dollars punitive damages.

There are numerous assignments of error, but we deem it necessary to discuss only one,1 and that is whether or not the circuit court of Jefferson county had jurisdiction of the suit. The evidence shows that the defendants lived in Jefferson county, and, for the purpose of this decision, we assume the trespass was shown to have been made upon that part of the land situated in Franklin county lying between the county line and the little creek known as Hays creek, though the evidence would probably warrant the jury in finding that the defendants also entered the land in Jefferson county.

Section 707, Code of 1906, section 486, Hemingway’s Code, governs the question of jurisdiction and reads as follows:

“Civil action of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant, or any of them, may be found, except where otherwise provided, and except actions of ejectment and actions of trespass on land, and actions for the statutory penalty of cutting and boxing trees and firing woods, and actions for the actual value of trees out, which shall be brought in the county where the land, or some part thereof, is situated; but'if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the county of his residence, and in such cases process may be issued against the defendant to any other county. If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, the venue shall be changed on his application, to the county of his household and residence.”

It will be seen from a reading of this section that suits for trespass on lands shall be brought in the county where the land, or some part of.it, is situated; but if the land be in two or more counties, and the defendant resided in either of them, the action shall be brought in the county of his residence.

It will be noted that the venue depends upon the location of the land, and that if the land is partly situated in two counties, and the defendant resides in one of the counties,' that the suit must be brought in that county where the defendant resides. The statute does not say that suit shall he brought in the county where the trespass occurred. It contemplates that the action is for the entry of a tract of land, or for trespass upon a tract of land, and we do not think that the plaintiff must track the trespasser and have a survey made to determine on what land the tracks or injury may be situated. The action at common law was for the entry of a close, or for a trespass upon a close, which is another way of saying upon a tract of land. In the present case the tract of land described in the plaintiffs’ declaration lies in two counties but constitutes one field or close.

We think the suit was properly brought and that where a plaintiff has a close or farm situated in two counties, and a defendant trespasses thereon, and the defendant lives in one of the counties, the suit must be brought where the defendant lives, even though the trespass actually committed may have been upon that part of the land situated in the other county.

We think the evidence warrants a verdict, and that there was no error committed in the trial sufficient to reverse the cause. The judgment is accordingly affirmed.

Affirmed.