53 -0 MISSOURI PACIFIC RAILROAD CO. V. HENRY. [18E; MISSOURI PACIFIC RAILROAD COMPANY V. HENRY; 4-3271 Opinion delivered . January 8, 1934. 1. COURTS—JURISDICTION OF SUBJECT-MAI .—Consent can not confer jurisdiction of the subject-matter. 2. VENUE—INJURY TO REAL PROPERTY.—An action by tenants for injury to land by destruction of planted seed and loss of the use of land caused by flooding is an action for "injuries to real property" within Crawford & Moses' Dig., § 1164, 4th subdiv., and must be brought in the county where the land lies. Prohibition to Drew Circuit Court ; Patrick Henry, Judge ; writ granted. R. E. Wiley and E. W . Mocrhead, for petitioner. Willimnson te Williamson, for respondent.
ARK.] MISSOURI PACIFIC RAILROAD CO. v. HENRY. 531 Sam T. ce Tom Poe, Meehan ic0 Moncrief, Franais R. Stark and Rose, Hemingway, Cantrell (0 Loughborough, amici curiae. MCHANEY, J. Three separate suits were filed in the Drew Circuit Court by tenants of certain lands in Desha County against petitioner, to recover damages caused by the flooding of said lands. It was alleged in each case that petitioner had built a temporary dam across a drainage ditch adjacent to said lands, some time prior to May 17, 1931, for its convenience in repairing a ctilvert under its tracks through which said ditch drained; and that on or about said date a general rain fell in that vicinity, filling said ditch and causing it to overflow onto their lands ; that cotton seed had been planted in certain of said lands, and other had -been prepared for planting; and that the overflow water stood on said lands for five or more days, causing the.seed to rot without sprouting, and that tbe land remained in such condition for such a length of time that a replanting failed to- produce any crop whatsoever. Damages were prayed in different amounts for loss of money and labor expended in planting cotton seed, loss of crop of cotton whieh would have been produced but for the flooding thereof, and loss of the use of said lands. Petitioner demurred in each case on the gronnd that the court was without jurisdiction because the subject of the cause of action is damage to real estate and-afpurte-nances thereto, and should be brought in the 'county 'in which the real estate lies. The court overruled the de-murrer, and this action for prohibition folloWed. Counsel for petitioner and respondent, as well as counsel as amici curiae, have filed exhaustive briefs • deal- • ing with the questicin_of whether growing crops are a part of the land, whether a tenant's title is a constructive severance, and whether a tenant May sue for temporary damages to land, all bearing on the question of whether the action is local or transitory. We think these very interesting questions are not involved in this case. The complaints do not allege any damage to growing crops, or that any crops were growing on said land. On the
53') Missoula:PACIFIC RAILROSD . CO, v. llxinr. 1188 contrary, the allegations are :that - cotton seecl had -been planted on- a portion . of 'the land, -but that it hae . 1 :not sprouted, the exact language being that "cotton • seed planted in said land was thereby killed and prevented from sprouting; and said land, being thoroughly water-soaked and damaged for crop planting purposes by the water standing thereon for the period above described, was not sufficiently dry to make it possible to replant cotton or any other crop .thereon until on or about June 1, 1931." In one of . the cases it is alleged that 15 acres had been prepared for planting, but was not planted.. There is therefore no question of damages to growing crops. The queStion . is : Do the complaints state actions for in jtiries to real property? If . so, they are local and mnst be brought in the county where the lands lie. Section 1164, Crawford & Moses' Digest, 4th subdiv.; Jacks v. Moore, 33 Ark. 31 ; Cox v. Railloay Co., 55 Ark. 454; 18 S. W. 630.: Even consent cannot confer jurisdiction of the-subject-matter. King v. Harris, 134: Ark. 337, 203 S. W. :847. See Kory v. Dodge, 174 Ark. 1156, 298 S. W. 505. The seed before planting were personal property, but, when planted and becanie commingled with the soil, they became a part of it, and were therefore realty. These actions were necessarily for injuries to real estate, for the destruction.6f the seed, and for the loss of the use of the . land. The real estate was temporarily injured by the overflow by preventing the use of the land for.the growing of crops. Willie no permanent injury to the land was claimed, a temporary injury thereto was alleged, in that the dam so constructed held the water thereon for such a length of time that it could not be cultivated in the yenr 1931. This was a damage . to the tenants' interest therein, and resulted not onlY in the -loSS of the seed Which had been planted, but in the labor of . preparing , it foi seeding,. and in the crop -. that otherwise would have been grown. We do not discuss the measUre dam.ages, as only the question of jurisdiction is before us. . It pcessarily follows from what me-have said that the Dreiv Circuit Couft was without jurisdietion,..the
yenue of the actions being ,. in Desha ; County,- where ,the land is situated. Let the writ of prohibition issue. MEITAF J.„ dissents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.