OPINION OF THE COURT.

It appears from the briefs of the respective counsel in this case, that section 2950, Comp.-Laws 1897, is relied upon by both of the parties to this litigation, therefore, in order to obtain a clear understanding of the rulings and judgment of the court below, the paragraphs relied on will be set out in full.

“See. 2950. All civil .actions which may hereafter be commenced in the District Courts shall be brought and shall be commenced in counties as follows, and not otherwise:

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“Fourth. When lands or any interest in lands are the object of any suit in whole or in part, such suit shall be brought in the county where the land or any portion thereof is situate.

“Fifth. Suits for trespass on land shall be brought as provided in the first paragraph, or in the county where the land or any portion thereof is situate. * * * * * *”

1 The appellant, contending, that the object of the suit is to recover damages for a trespass on lands relies upon paragraph 5 of section 2950 above quoted, as conferring jurisdiction upon the District Court of Bernalillo County to try the cause notwithstanding the fact that the complaint shows the land involved to be situated in the County of Sandoval. The contention of appellant would, undoubtedly, be correct if the claim for damages was the sole object of the suit. The claim for damages for trespass to land, however, is not the sole object of the present action. Dpon this theory, appellee insists that under the pleadings and circumstances of this case the cause involves an interest in lands within the meaning of paragraph 4 of section 2950 above set out. Appellee, therefore, denies the jurisdiction of the District Court of Bernalillo County to try the cause.

The demurrers and motion to strike were interposed after the answers were filed, the demurrers challenging two of the answers, while the motion seeks to strike out only paragraph 5 of the remaining answer, but in the brief of appellant’s counsel it is insisted that the complaint alone must be considered upon the question of jurisdiction; that the complaint is for one hundred dollars damages and that such is the prayer of the complaint.

2 3 4 Examining the complaint then, (without conceding the correctness of the above contention) it is found to contain both a legal and an equitable cause of action, which is permissible under the Code of this Territory. The legal cause alleged is damages for a trespass on land of which the appellant not only is the owner in fee simple, but was in possession at the time of the trespass, thus disclosing a clear right of action if the allegations are true and undisputed. But, can it be contended successfully that the allegations of ownership and right of possession cannot be denied by the .answer to such a complaint? We think not, as a defendant who is the owner and in lawful possession of a tract of land is not liable for trespass upon his own land. In this case the answer of the appellee not only denies the ownership and right of possession of the appellant of the land involved, but paragraph 5 of the answer claims ownership and right of possession to be in the appellee. We are of opinion, therefore, that the motion to strike was properly overruled.

5 8 The injunction prayed for in the complaint cannot bo treated as'a mere incident to the action for damages as is apparent from an examination of the complaint. In the first place, the complainant claims title in fee simple to the land upon which the growing trees are alleged to have been cut and improvements made; alleges that the growing timber is in danger from fire caused by appellees piling brush on the land, and further alleges that unless restrained the appellee will continue to cut down and carry away the growing trees. Now these allegations of the complaint demand protection of the realty as growing trees are a part of the realty and no part of the claim for damages for trees already cut. Based upon these allegations is the prayer, “that upon final hearing the said defendant (appellee in this court) be perpetually enjoined from claiming any right, title or interest in or to said premises and from interfering in any way with the clearing, improving or use of said premises by said plaintiff, (appellant).”

7 It is clear that if the relief sought should be granted by the court, the appellee would be perpetually restrained from asserting title or any interest whatever in or to the lands in dispute of which he claims to be the absolute owner by deed. Under these allegations of the complaint itself it is apparent that an interest in land is necessarily involved in this suit within the meaning of the fourth paragraph of section 2950 supra, which provides that suit shall be brought in the county in which the land is situated, and as the complaint shows that the land is situated in Sandoval and not in Bernalillo County there was a want of jurisdiction for which the demurrers were properly overruled by the court below.

8 This cause is in form an action of “trespass to try title” which action is authorized by the laws of the state of Texas, but not in this Territory, the complaint herein being almost identical with the forms of complaint in actions of trespass to try title provided for by the Texas code.

9 The answers in this case, being responsive to the eomplaint, and challenging its allegations, are not obnoxious to either the demurrers or motion to strike' interposed by the appellant, and therefore errors assigned upon their denial by the court below, cannot be sustained.

10 The conclusion of the court below that there was a want of jurisdiction necessarily led to the sustaining of the motion of appellee’s counsel to strike from the files the appellant’s replication, and as we agree with ' the court that there was a want of jurisdiction, it follows that there could be no error in the sustaining of the motion to strike the reply.

11 From the views above expressed, and the further fact disclosed by the record, that the appellant declined to plead further in the court beloW, we are of the opinion that the judgment of dismissal was properly rendered, and the error assigned as to this action of the court below is overruled with costs. And it is so ordered..