Garnier v. Porter

Temple, C. — Appeal from judgment and order refusing plaintiffs a new trial.

This action is for damages for the destruction of the hay, grasses, and pasture on 2,880 acres of land. It is charged that defendant “ willfully and negligently kindled a fire on his land and set fire to grasses growing thereon in the vicinity of the plaintiffs’ land, and so negligently watched and tended the said fire that it spread over the intermediate space, and came to and spread [107]over the plaintiffs’ land, and consumed the hay, grass, and pasture,” etc.

Plaintiffs claim that they were damaged in the sum of forty thousand dollars, and that by reason of section 3344 of the Political Code they are entitled to judgement for treble that sum.

The answer contained a general denial.

A jury having been waived, the action was tried by court, which found for the .defendant, specifically negativing all the material allegations of the complaint, and also finding that “ said fire did not come upon the land ; so occupied by the plaintiffs, or" any portion thereof, by reason of any negligence on;the part of the defendant whatever.”

We think the findings sufficient, and there is undoubtedly evidence to sustain them. But the plaintiffs contend that the act of defendant in setting fire to the stubble on his own land, although an ordinary agricultural process, was unlawful, and therefore the defendant is liable for the natural consequences, irrespective of the question of negligence.

This is supposed to be the effect of section 384 of the Penal Code, which is as follows:' “ Every person who willfully or negligently sets on fire or causes or procures to be set on fire, any woods, prairies, grasses, or grain, on any lands, is guilty of a misdeni.eanor.”

The section is similar to sectioh 142 of the act concerning crimes and punishments passed April 16, 1850. That contained, however, a proviso?, excepting fires set by any one near his own farm for the necessary preservation thereof, after giving notice to his neighbors. (Stats. 1850, p. 247.)

In 1872 an act was passed making it a misdemeanor to set fire to any woode^l country or forest belonging to the state or the United States.

Section 3344 of the Political Code provides that any one negligently setting fire to his own. woods, or negli