Opinion
June Term, 1820.
The Acts of 1777, c. 25, and 1782, c. 29, do not apply to cases of burning the woods from necessity, but only to voluntary firing. Held, therefore, that one who sets fire to woods by necessity need not take "effectual care," or any care to extinguish it, so far as regards the penalty inflicted by those statutes, though he may be liable to an action on the case for the damages actually sustained by another.
THIS was a warrant, from GREENE, for the penalty of twenty-five pounds, under the act of 1782, ch. 29, sec. 2, for firing the woods. It came on for trial on the general issue, at April Term, 1820, when the case appeared to be this: That on 25 March the defendant put fire to his own woods to burn around a tar kiln, which afterwards communicated with the plaintiff's fence about half a mile off, and consumed it; that on the morning of 24 March a fire was discovered to be burning in the woods about two miles distant, which created some apprehension for the safety of the kiln, and induced the defendant to believe that it would be necessary to burn around it, and that he gave notice to the owners of the adjoining lands of his intention; that the fire in the woods continued to approach the kiln during both days, until it came within a quarter of a mile, and that then the defendant burnt the woods around the tar kiln for the purpose of saving it; and that but for such burning the kiln would have been lost. No evidence was offered to show that the defendant had taken care to extinguish the fire which he kindled, nor to prove that he had been negligent. The court instructed the jury that under the emergency of the case, if the burning around the kiln was necessary to save it, the defendant was not subject to the penalty for the act of setting fire to the woods; but that it was incumbent on him to use effectual exertions to prevent the fire extending to other lands than his own, which the defendant had not shown, and therefor the plaintiff was entitled to recover. The jury found a verdict for the (61) plaintiff for the twenty-five pounds, which the defendant moved to set aside for misdirection; but it was refused, judgment rendered against him, and he appealed to this Court.
Gaston Gaston for the appellant.
Seawell for the appellee.
The act of Assembly was evidently (62) intended to prevent a deliberate or a wanton setting fire to the woods by the owner of land, without giving the requisite notice. It certainly did not contemplate the case of a man setting fire to his own woods to save his property or his land from the ravages of an approaching fire. To make the firing in such a case unlawful without notice was to compel a man to become a passive spectator of the destruction of his own property.
It is then only in cases where a notice must be given that the penalty can be incurred for not taking effectual care to extinguish the fire. If a person does not come within the act he cannot be liable for not doing anything enjoined by it; and the obligation to take effectual care is imposed on those only who are bound to give notice. There is another reason for this construction. The act requires effectual care to be taken to (63) extinguish the fire, so that the party must extinguish it at all events, otherwise his care is ineffectual and he must pay the penalty. Although this might perhaps be exacted from a person who is at liberty to choose his own time to set the fire, and who may accordingly provide himself with the aid of his neighbors to prevent its spreading, yet it would be unreasonable to expect it from one who fires the woods from a sudden emergency and in his own defense. Nor is there any necessity for so harsh a construction of the law, for a person injured by the negligence of him who does the act has a remedy at common law. I therefore think the judgment ought to be reversed.
Were it not for the word "effectual" in the statute I might possibly concur with the Circuit Judge. But it seems very unreasonable that a man should not be permitted to set fire to his own woods to preserve his own property from destruction unless he should take effectual means to extinguish the fire; his best exertions will not do. If such were the law the right of property would not be worth possessing. In such a case it would seem enough for him to repair the actual damages sustained by him who may have been injured; and if the present plaintiff is of that class let him bring his action for that purpose.
As the defendant is not within the penalty of the law, the firing being from necessity, he need not show that he took effectual or any care to extinguish the fire, for the last would be unavailing if he were within the penalty. There is good reason that the endeavors should be effectual in case of a voluntary firing, for as that is a thing of his own choice, in which he may select his own time, it is not unreasonable to compel a man to see that the means which he provides to extinguish the fire be sufficient for that purpose. That it was a voluntary firing which the Legislature intended to prohibit under a penalty I think is quite evident from the provision that notice should be given. (64) To prohibit a man from doing what he is strongly impelled to do by his very nature is not to be inferred from anything short of plain and evident words; and even if the words would well bear that meaning and another sensible construction can be given the latter shall be preferred as the true one. I think, therefore, that the court erred in instructing the jury that the defendant incurred the penalty, because he did not prove that he took effectual means to extinguish the fire. In this case it was not necessary that he should take any means, and I am of opinion that the rule for a new trial must be made absolute. Rule made absolute.
Cited: Lamb v. Sloan, 94 N.C. 537.