Achenbach v. Johnston, 84 N.C. 264 (1881)

Jan. 1881 · Supreme Court of North Carolina

84 N.C. 264

GEORGE ACHENBACH v. THOMAS P. JOHNSTON.

Field — Murninff Woods — Penalty.

A field grown up-in broom-sedge and- wire-grass, surrounded" by an old fence and used as a pasture, is not “woods within the meaning of the statute, Bat. Rev. ch. 13, § 1^ and the owner burning off the samé-is not liable to the penalty imposed by the act for an alleged injury to-an adjoining proprietor.

{Hall v. Orawford, 5 Jones, 3; cited, distinguished and approved.)

Civil Action tried at August Special Term,. 1880, of Rowan Superior Court, before McKoy, J.

The action was brought to recover damages for an injury alleged to- have been caused by the defendant in- burning-off the broom sedge on his land when there was -a strong wind blowing towards the land of plaintiff, which by the alleged negligence of defendant caused the fire to be communicated to plaintiff’s fence, destroying a part of the same. The defendant denied the allegation of negligence, and among other things averred that he and five other persons used every effort to- prevent the fire from spreading so as to injure the plaintiff.

The evidence tended to show that the defendant’s land (burned off) consisted of a field grown up in broom sedge and wire grass, surrounded by an old fence and used as pasture land. There was no evidence that defendant notified plaintiff of bis intention to barn, off'the fields but there was evidence showing that after the fire reached plaintiff’s land, the defendant used great diligence in trying to prevent its spreading and injuring plaintiff s fences.

The plaintiff’s counsel asked the court to charge the jury that the policy of the law (Bat. Rev. ch. 13) forbids any one from setting fire to his woods unless two day’s written notice is first given to all persons owning adjoining land,, which the court gave, but added that there was no, evidence that the defendant had set fire to his woods, to which the plaintiff excepted. The jury found the issues in favor of defendant,, judgment,, appeal by plaintiff.

Mr. J. M. McOorkU, for plaintiff

No counsel for defendant.

Ruffes, J.

The question presented in this ease is» whether “a field grown up in broom sedge and wire grass,, surrounded by an old fence and used as a pasture,” can be construed to be “woods”' within, the meaning of the statute-. Bat. Rev. ch. 13, § 1. His Honor below held that it c©.uld not, and we concur in his opinion. '

The case of Hall v. Crawford, 5 Jones, 3, in which it was held tha-t “an old field which had been turned out without any fence around it cmd whieh had grown up- in broom sedge and pine bushes, some of which were %oaist-liigh and others- head-high,”' did come within its meaning, stretched, the doctrine of being liberal in construing statutes in order to- reach the mischief intended to be remedied, as far as it is safe to follow. We therefore hold that in the ruling of the superior court there was no error.

No error. Affirmed.