In Telegraph Co. v. Middleton, 80 N.Y. 408, defendant was sued for cutting down and converting telegraph poles, and it was said by the Court: "The telegraph poles, with the wires and attachments thereto, which, it is alleged, were cut down by the defendant, were affixed to the soil of a highway and constituted a part of the freehold.Summary of this case from Cedar Works v. Lumber Co.
Argued March 9, 1880
Decided March 19, 1880
Harry Wilber, for appellant. R.E. Deyo, for respondent.
This action was brought to recover damages for wrongfully and maliciously cutting down, and unlawfully carrying away and converting twenty-three telegraph poles, wires, and insulators attached thereto, located in the State of New Jersey, and forming a part of a continuous line of telegraph in operation in that State.
An order of arrest was granted, the defendant held to bail, and a motion to vacate the order was denied. The defendant appealed to the General Term, where the order was affirmed and an appeal was taken to this court.
The question presented is whether an order of arrest can be lawfully granted in such a case. The telegraph poles, with the wires and attachments thereto, which, it is alleged, were cut down by the defendant, were affixed to the soil of a highway, and constituted a part of the freehold. ( The Electric Tel. Co. v. Overseers, etc., 24 L.J. [N.S.], 146.) As they could not be cut down without an entry on the realty, and this constitutes a material part of the damages, the only action which can properly be brought is an action of trespass quare clausum fregit. This is clearly manifest; and as such action is local in its character, by the statute as well as by the common-law, it will not lie in this State, where the land is located in another State. ( Watts' Adm'rs v. Kinney, 23 Wend., 484.) In the case last cited it was held that although the courts will entertain actions which are in their nature transitory, notwithstanding they arise abroad, actions for trespass quare clausum fregit, ejectment, etc., where the land lies in a foreign country, cannot be tried here.
It is claimed that the damage to the real estate is not the cause of action; and as the tortious acts were committed upon the highway where the defendant had a right to be, there could be no trespass on the close. The answer to this position is that the plaintiff had affixed their poles to the realty, and the cutting away of the same was a trespass for which damages could only be recovered by an action quare clausum fregit.
It is also insisted that the gravamen of the complaint was for carrying away and converting the poles which were severed, and were personal property after the cutting, even if they were a part of the realty previously. It is quite obvious that the cutting of the poles and the removal of them was one continuous and uninterrupted transaction, inseparably connected together, which constituted a single cause of action which cannot be divided into two actions, — one for the cutting and another for the conversion. The one was a part of the other, and the conversion so coupled with the cutting that they were the same, and both of them are thus made local: ( Howe v. Willson, 1 Den., 181.)
Conceding, however, that the poles and wires could have been made the subject of a conversion after they had been severed from the soil, we think that the affidavits establish that no such separate conversion actually took place. The defendant only carried them from the place where they were cut and from the highway to the ditches and side fences of the road, and left them there or placed them on the side fences by the road-side. There was no assumption of possession, no attempt to exercise control, or to convert them to his own use. But even if there was, the only damages which could be recovered in such a case would be the actual value of the poles and wires, which would be merely nominal when compared with the amount of damages ($5,000) which the plaintiff claims to recover, and for which sum the defendant was held to bail in this action. It is very evident from the plaintiff's affidavits that there was no legal conversion, and that it could not take place without a removal of the poles and wires for the purpose of taking them away from the plaintiff, or by the exercise of some dominion over them by the defendant for the benefit of himself or of some other person. The mere act of removal, of itself, independent of any claim over them in favor of the defendant, or any one else, does not amount to the conversion of the poles, wires and insulators: (Addison on Torts [3d ed.], 309.)
We might stop here, without any further discussion; but it may be added that as the order of arrest was granted for the cutting, as well as an unlawful conversion, even if such conversion took place, that it must be discharged for the reason that the right to arrest is not applicable to all the causes of action: ( Smith v. Knapp, 30 N.Y., 581-588; McGovern v. Payn, 32 Barb., 83.) The case of Mooers v. Wait (3 Wend., 104), is relied upon by the counsel for the respondent to sustain the position that an action will lie for the conversion of the telegraph poles, although the defendant committed a trespass in cutting them down. The action was against a party who had obtained timber through the person in possession, under a contract with the plaintiff, such person having unlawfully cut the same; and it was held that it belonged to the owner, and he could maintain trover against any person in possession, although a bona fide purchaser under the occupant. The case is not in point, as the question as to the effect of a severance and a removal in connection with the conversion was not presented or considered.
The objection urged that the question as to jurisdiction cannot be taken by motion, is not well taken. If the order of arrest was granted without any authority, it is apparent that the defendant has a right to move to vacate it for that reason, and it is not bound to raise the question by answer or demurrer. It is sufficient that the papers upon which it was granted show a want of power, to authorize the court to vacate the order.
The cases in which an action will lie for an injury, in another State or country, to the person or property, are personal and transitory actions which do not relate to the realty, and have no application to an action of trespass quare clausum fregit, where the place of trial must be confined to the locality, as is the case here. In cases of this character no action will lie outside of the jurisdiction of the State or country where the cause of action arose.
It follows that the order of the Special and General Terms must be reversed and the motion granted, with costs to the defendant, and with costs of appeal to the General Term and to this court.
CHURCH, Ch. J., RAPALLO and DANFORTH, JJ., concur; EARL, J., concurs in result; FOLGER, J., took no part; ANDREWS, J., absent.