Averitt v. Murrell, 49 N.C. 322, 4 Jones 322 (1857)

June 1857 · Supreme Court of North Carolina

49 N.C. 322, 4 Jones 322

JOHN A. AVERITT v. ELIJAH MURRELL, JR.

Eor one, clearing a new ground, to let fire escape into his wood-land, whereby an extensive and injurious burning of the woods ensues, it is not such a setting fire to his own woods as is contemplated in the Act of Assembly. Revised Code, ch. 16.

AotioN of debt, for a penalty commenced by a warrant, and brought to the Superior Court of Onslow County by appeal, where it was tried before Bailet, J., at the Spring Term, 1857.

The action was brought for the penalty of $50, given by the Act of Assembly, Revised Code, ch. 16, for unlawfully setting fire to woods. The warrant alleges that the defendant “ did set fire to a certain piece of his own woods, in the said County, adjoining the wood-lands of complainant and others, in said County, without giving two day’s notice to the owners of the adjoining wood-lands, contrary to our Act of Assembly,” &c.

The facts were, the defendant had fenced in a portion of his own wood-land, and was engaged in clearing it about the time of the alleged wrong; to this end, he had had the timber cut down and piled up for burning ; the nearest of these log-heaps was twenty-five or thirty yards from the wood-land of the defendant, and several hundred yards from that of the plaintiff. On the day charged in the warrant, the defendant ordered his slaves to set fire to these log-heaps, and to burn them up. They raked the trash away from the log-piles carefully, and in the morning, while the weather was calm, did set fire to the logs. Afterwards, the wind blew with great violence, and carried the sparks to the neighboring wood-land, whereby the woods took fire, and the flames. reached the plaintiff's wood-land, and burnt his cultivated turpentine trees, and did him considerable damage. . .

Upon these facts, his Honor intimated an opinion that the plaintiff could not recover, whereupon he submitted to a non-suit and appealed.

No counsel appeared for the plaintilf.

Wm. A. Wright, for defendant.

Battle, J.

"We cannot imagine how, in'any proper sense, the burning of log-heaps in one’s own enclosed field, can be called burning his woods. The term “ woods,” as used in the statute, (see Bev. Stat., ch. 16 ; Bev. Code, ch. 16, sec. 1) means forest lands in their natural state, and is used in contradistinction to lands cleared and enclosed for cultivation. The. statute is a penal one, and must, therefore, be construed strictly ; but, whether construed strictly or liberally, we are clearly of opinion that the facts proved do not bring the defendant either within the letter or spirit of it. The judgment must be affirmed.

JPee Oueiam. Judgment affirmed.