#### C. L. PERRY v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 29 September, 1910.)

1. Removal of Causes — Injury to Realty — Venue.

An action against a railroad company to recover damages for burning land is a local one in its nature and triable in the county in which the injury occurred (Revisal, section 419), and upon demand in writing (Revisal, section 425) should be removed to that county if brought in a different one.

2. Same — Railroads.

The Acts of 1905, chapter 367, amending the Code, section 192 (Revisal, section 424), providing that actions against railroads may be tried in the county where the plaintiff resided at the time the cause of action arose, expressly excludes actions for injury to lands by making it apply to other eases than those specified in the previous sections, and does not repeal or modify section 419 in regard to the venue of actions of this character, it being for damages for personal injuries. Prohst v. II. R. 139 N. G., 397, cited and distinguished.

3. Same — Appeal and Error.

An appeal directly lies from the refusal of the trial judge to remove a cause to the county in which injury to the plaintiff’s land, the subject of the action, was committed.

*118Appeal from D. L. Ward, J., at tbe May Term, 1910, of WlLSON.

Tbe facts are stated in tbe opinion.

Daniels & Swindell for plaintiff.

Murray Allen for defendant.

Walker, J.

Tbis action was brought in tbe Superior Court of Wilson County to recover damages for an injury to land situated in tbe county of Bladen. Plaintiff alleged tbat tbe defendant bad negligently started a fire near its track wbicb spread over bis land and burned tbe timber tbereon. Tbe defendant demanded in writing, as required by Eevisal, sec. 425, tbat tbe case be removed for trial to tbe proper county, tbat is, to tbe county of Bladen. Tbis motion, called a demand in tbe statute, was refused and defendant appealed.

Witb regard to tbeir venue, actions are divided into local and transitory. A local action is one where tbe principal facts upon wbicb it is founded are of a local nature, an action, in other words, tbe cause of wbicb could have arisen only in some particular county. Actions to recover damages for injuries to land are classified as local in tbeir nature, because, generally speaking, tbe wrongful act or tbe damage to tbe land could only have been done in tbe county where tbe land, or some part thereof, is situated. 22 Enc. of Pl. & Pr., 776. Tbe Eevisal, sec. 419, provides as follows: “Actions for tbe following causes must be tried in tbe county in wbicb tbe subject of tbe action or some part thereof is situated, subject to tbe power of tbe court to change tbe place of trial in tbe cases provided by law: 1. For tbe recovery of real property or of any form of such right or interest, and for injuries to real property ” Tbe negligent burning of timber on land is an injury to real property within tbe meaning and intent of tbat section (R. R. v. Foster, 107 Ind., 430; R. R. v. Weeks, 81 Tenn., 148), and by its provisions an action to recover damages for such an injury should be tried in tbe county where tbe injury was committed, and where it is brought elsewhere tbe court will remove it for trial to tbe proper county, upon application duly made. We have *119recently so decided in a ease similar to tbis one. Cooperage Company v. Lumber Company, 151 N. C., 455. But tbe plaintiff contends tbat by tbe Act of 1905, cb. 367, amending tbe Code, sec. 192 (Eevisal, sec. 424), it is provided tbat actions against railroads may be tried in tbe county where tbe plaintiff resided at tbe time tbe cause of action arose, and, therefore, tbat tbe action was properly brought in Wilson County, and should be tried there, and be relies on Propst v. R. R., 139 N. C., 397, to support bis contention. Tbe cause of action in tbat case was transitory, not local, in its nature, as is tbe cause of action in tbis ease, and tbe meaning of tbe proviso to sec. 424 is tbat actions against railroads, where not otherwise provided, shall be brought as therein prescribed. Tbis is clear from tbe lan-jguage of sec. 424. It is provided in tbe preceding sections where actions shall be tried, having reference to tbe nature of tbe causes of action, and without reference to tbe character of tbe defendant as being a natural or artificial person, and then provision is made for tbe trial of actions against public officers, executors and administrators, domestic and foreign corporations. It is then provided by see. 424 tbat in “all other cases” tbe action shall be tried as therein specified, with a different provision as to actions against railroads. We held in Propst v. R. R., tbat tbe proviso applied to all railroads, whether resident or non-resident, and we necessarily referred to an action of tbe bind then under consideration. It was not intended to decide, and we did not decide, tbat tbe proviso repealed sec. 419, or even modified it. Tbe expression, “in all other cases,” ex vi termine, excludes tbe idea tbat tbe Legislature intended tbe proviso to apply to an action against a railroad for tbe recovery of land, or any injury thereto, so tbat such an action will not be subject to tbe provisions of Eevisal, sec. 419. When an action is brought for tbe recovery of real property, or any estate or interest therein, or for injuries thereto, tbe place of trial is determined by tbe nature of tbe cause of action, which is local, and not by tbe fact tbat one of tbe parties, tbe defendant, happens to be a railroad, and therefore it can make no difference who tbe parties are, whether natural or artificial persons. Tbe proviso of see. 424 is restricted to tbe bind of actions to which *120that section applies, and was not intended to except actions against railroads from the provisions of sec. 419 and 420. In the case of McCullen v. R. R., 146 N. C., 568, decided in 1908, it was conceded in the opinion that an action for a penalty must be brought in the county where the “cause of action or some part thereof arose,” under sec. 420 of the Eevisal. This would not be so unless the proviso to sec. 424 is to be construed as we have said in.this case it should be. ¥e held, it is true, in Propst v. R. R., that it embraced railroad corporations, foreign and domestic, and to that extent created an exception to sec. 423 relating to such corporations, as to all causes of action coming within the provisions of sec. 424, to which it is an amendment, and this is so because the language of the amendment was so comprehensive as to take in both foreign and domestic railway corporations. The language of the opinion must be read with reference to the particular -nature of that action, which was brought to recover damages for an injury to the person.

This appeal was properly taken from the order refusing to change the place of trial. Connor v. Dillard, 129 N. C., 50.

The court erred in refusing to grant the application for a removal of the case to the proper county for trial.

Reversed.