Olshove v. Huron Circuit Judge , 240 Mich. 46 ( 1927 )

Section 10217, 3 Comp. Laws 1897, provided "That all cases of trespass on lands, and all cases of trespass upon the case for direct or consequential damages on account of injury topersonal property," where the defendant was not an actual resident of the county in which such property was situate at the time of its injury, might be prosecuted in any county in which the defendant could be found. In 1903 (Act No. 247) the words italicized above were changed to "lands."

The distinction between an action of trespass quare clausum and one of trespass on the case for direct or consequential damages on account of injury to lands was thus clearly recognized by the legislature. It was but in accord with the decisions of this court. In Wood v. Railroad Co., 81 Mich. 358, it was held that damage to plaintiff's lands caused by the defendant entering thereon and building a roadbed could be recovered only in an action of trespass to the realty, while inWyant v. Crouse, 127 Mich. 158 (53 L.R.A. 626), it was held that damages caused by the burning of a building through the negligence of the defendant might be recovered in an action of trespass on the case. See, also, Cribbs v. Stiver, 181 Mich. 82.

Section 12340, 3 Comp. Laws 1915, quoted by Mr. Justice McDONALD, is a part of the judicature act (Act No. 314, Pub. Acts 1915). It differs but little from the language employed in section 10216, 3 Comp. Laws 1897, which preceded section 10217, referred to above. It will be found, however, that section 10217 is entirely omitted from this act. The annotators (Cummins Beecher) say that it is merged in section 12340. But this section contains no similar provisions.

There surely could have been no intent to deprive those sustaining damages due to such injuries from an effective right of action. Without the right to sue in another county, all that a wrongdoer need do is to keep out of the county in which the land was situate and no recovery could be had against him.

I am impressed that, in the opinion of the commission who so carefully prepared this act, such a provision was deemed unnecessary, owing to the change made in the law relating to "Forms of Actions" by abolishing the action of trespass to realty. Section 12350 provides:

"The following actions at law are retained, namely, actions of assumpsit, trespass on the case, replevin, ejectment, certiorari, mandamus and quo warranto. All other forms of actions at law are abolished."

The action of trespass quare clausum was local. The gist of such an action was the injury to the possessory right, and the damages in such cases were awarded for a wrongful invasion thereof. Trespass on the case is brought to recover damages for wrongs not committed with or having been occasioned by force, where the injury is the result of some unwarranted or negligent act. Actions of the former class are local. Those of the latter are transitory.

This court having held in the Wyant Case, supra, that trespass on the case might be brought for damages occasioned by the negligent destruction of a building by fire, and as such an action was transitory, there remained no useful purpose in continuing in force the provisions in section 10217, above referred to.

The action here brought is in trespass on the case. In my opinion, it is a transitory action and within the jurisdiction of the circuit court for the county of Huron. I concur in the granting of an order for the issuance of the writ, if necessary.

BIRD, STEERE, and WIEST, JJ., concurred with SHARPE, C.J. CLARK, J., did not sit.