The facts are stated in the opinion of the Court. This motion was heard upon affidavits presented by both parties, and the record of the cause, at chambers in New Bern, on 13 May, 1909. The judge made the following finding of facts:
1. The court finds that this is an action to recover damages for an alleged trespass by the defendant by cutting timber upon lands claimed by the plaintiff.
2. That the lands described in the complaint are claimed by (456) the plaintiff under one deed, and that said lands, as located by the plaintiff, lie partly in the counties of Pamlico and Beaufort.
3. That the portion of the lands upon which the defendant has trespassed, if there has been any trespass, lies within the county of Beaufort, and that the defendant has not committed any act of trespass upon any of the lands of the plaintiff which lie in the county of Pamlico.
4. That there is a controversy between the plaintiff and defendant as to the ownership of the lands upon which the defendant has been cutting timber, but that this controversy does not extend to any of the lands described in the complaint which lie in the county of Pamlico, and that *Page 441 the defendant has expressly in this action disclaimed any claim whatever to any of the lands described in the complaint which lie in the county of Pamlico.
The affidavits not only support these findings, but there seems to be no controversy in regard to their correctness. The venue of civil actions is a matter for legislative regulation and is not governed by the rules of the common law. S. v. Woodard, 123 N.C. 710.
The statute controlling in actions of this character is section 419 of Revisal of 1905; Clark's Code, sec. 190. In construing this section it has been held that where the lands claimed, in an action of ejectment brought to recover possession of them, are contiguous and situated in two adjoining counties, the action may be brought in either. Thames v. Jones, 97 N.C. 121. This is necessarily so, as the subject of the action is situated in both counties.
It is to be noted, however, that the statute makes a distinction between actions to recover possession of real property and those brought to recover damages "for injuries to real property." It declares that actions for"injuries to real property" must be tried in the county in which the subject-matter of the action, or some part thereof, is situate, subject, of course, to the power of removal in the cases provided by law.
The complaint shows that this action is brought to recover damages for an injury to real estate, and not to recover possession of it, and it is this injury to real estate which is the subject of this action. The findings of fact have located the injury exclusively in the county of Beaufort and no part of it in the county of Pamlico. Inasmuch as the defendants disclaim title to any land situated in Pamlico, and have done no injury to lands in that county, it would seem to be plain that the entire "subject-matter of the action" is situated in the county of Beaufort, and that, under the letter as well as the spirit of the law, the action must be tried therein. (457)
The order of removal is
Affirmed.
Cited: Perry v. R. R., 153 N.C. 119; Norman v. R. R., 161 N.C. 329. *Page 442