Miller & Lux v. Kern County Land Co.

GRAY, C. It appears from the complaint herein that both the parties to the suit are corporations having their principal places of business in the city and county of San Francisco. The action was brought in said city and county to recover $25,000 on account of injuries to real estate situated in the county of Kern. It is alleged in the complaint that the plaintiff owns certain lands and an interest in the Buena Vista reservoir, which lands and reservoir are situated in said county of Kern; also that said plaintiff owns an interest in a certain' ditch leading out of said reservoir and across said lands; and that defendant, with force and arms, and unlawfully and against the will of plaintiff, placed and maintained a dam in said ditch, thereby preventing the use thereof for [685]the purpose of irrigating plaintiff’s said land, to the damage of plaintiff in the said sum of $25,000. Defendant made demand and motion for a change of venue to Kern county, on the sole ground that, the action being for damages to real property, the case should be tried in the county where the property was situated. We think this motion should have been granted. Section 392 of the Code of Civil Procedure provides that “actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial as provided in this code: (1) For the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property.” It will be seen that the section is mandatory by its terms and unless it is controlled by, or is in conflict with, some provision of the constitution, the action “must be tried” in the county where the property is situated. Section 16, article 12, of the constitution, provides that “a corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases.” This provision of the constitution does not affect the code provision quoted. It relates to a different subject, and is not necessarily inconsistent with said code provision. The constitutional provision does not in express terms refer to actions for injuries to real estate or to actions concerning real estate. We cannot be permitted to infer that it was meant to include injuries to real estate in its provisions because it uses the phrase, “or where the obligation or liability arises”; for to indulge in such an inference would make it include actions for the enforcement of liens on real estate, to quiet title, etc., and render it inconsistent with section 5, article 6. It cannot be successfully contended that the two sections of the constitution referred to are not in harmony (Fresno Nat. Bank v. Superior Court of San Joaquin Co., 83 Cal. 491, 24 Pac. 157); and the same rule that would harmonize these provisions of the constitution, and give effect to both, would also harmonize the code provision with the quoted section of the constitution. In Griffin & Skelly Co. v. Magnolia &