
    FINLEY (to use of) BOONE COUNTY vs. LANGSTON.
    1. Upon the trial of a qni tain action, founded “ on the statute to prevent the firing of woods, marshes and prairies;” evidence to prove that the land where the fire was set out belonged to the defendant is irrelevant.
    2. A person who sets fire around his own farm, does it at his peril: and if it occasions damage to another,he is liable under the statute, no matter what may have been his motive.
    3. The word “ farms,” as used in the statute to prevent the firing of “ woods, marshes, and prairies,” is not confined to enclosures.
    
      APPEAL FROM BOONE CIRCUIT COURT.
    STATEMENT OF THE CASE.
    This was aguí fain action, by Finley, against Langston,in the Boone circuit court, to recover the penalty of three hundred dollars, given by the first section of the act of the 26th of January, 1835, against the firing of woods, marshes and prairies.
    
      The declaration charges that the defendant wilfully set on fire the two mile prairie, not occupied by him, with intent to burn the same, and thereby burned up the fences, grain and hay of three persons, Robards, and the two Wright’s.
    The cause was tried on the plea of nil debit at the last August term, when the defendant had a verdict and judgment, from which the plaintiff1 has appealed to this court.
    Upon the trial it appeared in evidence that in the fall of 1844, the plaintiff, defendant, Robards and the two Wrights, lived on the two mile prairie in Boon county, that west of the defendants field, and north of Mrs. Modes, which joined the defendants on the south, and extended west of it, there was a triangular piece of prairie cut off from the main body of the prairie by a drain five or six feet deep and wide, for the purpose of saving their farms from being burned. The defendant proposed to Mrs. Modes son to burn the grass off of this triangular piece of ground, and went out for that purpose; the wind, however, being too high, they desisted on that day, but two or three days aftewards went out again, and the defendant set fire to the grass, which spreading rapidly, burned up the rails, grain and hay of Robards and the two Wrights. Enoch Hughes owned the quarter section of land west of the defendants, so that the triangular piece of land before referred to, belonged partly to the defendant and partly to Mr. Hughes. This pice of land was occupied by the defendant for the feeding of his stock, and it was here and on that part of it that belonged to the defendant that the fire was put out.
    Upon the trial the defendant offered to prove by a witness, Mr St. John, that the defendants fence was not on his line, and that his land extended beyond bis fence, which was objected to by the plaintiff, and the objection being overruled, the witness testified that the defendant claimed land out side of his fence, but to what extent witness did not know.
    Another witness, Mr. Mode, testified that the defendant claimed the land outside of his fence to a stone or stake about half way between the south-west corner of Ills field and the drain, which was also objected to by the plaintiff.
    A third witness, Mr. McGuire, testified that the defendants farm was on the N E qr. of sec. 32, that some years since he ran the line between the defendant and Mode, and planted a stake at the S W corner of the defendant’s land, which was three chains distant from his field and about half way between the field&the drain,and to this evidence the plaintiff also objected.
    The plaintiff asked six instructions, as follows:
    1st. That if the jury find from the evidence that prior to the commencement of this suit, the defendant, Langston, wilfully set on fire the said prairie in the declaration mentioned, and that the place where said defendant set the fire in the prairie was not on the farm of the said Langston, nor occupied by him, said defendant: and further find that the said firing of said prairie by said Langston occasioned any damage to the said Wm, Robards, Thomas Wright, and Samuel Wright, or to either of them by burning their or either of their property, as stated in the declaration, that then they are bound to find their verdict for the plaintiffs.
    2d. That if the jury find from the evidence that the defendant wilfully set the prairie on fire outside of his own enclosure, upon his own land, and not on his farm, or occupied by him, with an intention not only to burn the same within and upon his own land outside of his enclosure, or land occupied by him, but also with the intent to burn the same upon the land of Enoch Hughes, situate adjacent to his own and not occupied by him, and further find that by such setting said prairie on fire he burnt the same, as well upon his own as upon said prairie land of said Hughes, not occupied by said defendant, as also that the said fire did burn on and extend in its burning to the said lands of the Wrights and said Robards, and burned and damaged their or either of their property mentioned in the declaration that then they are bound to find their verdict for the plaintiff'.
    3d. That although they find from the evidence that defendant set the fire upon his own farm, yet it' they further find that it was done with intent to burn tbo prairie adjacent to his own farm, and not at the time occupied by him, and that such burning did occasion damage 
      to William Robards or Thomas and Samueli¡Wright, they mast find their verdict for the plaintiff.
    4th. That if they find fop the plaintiff they cannot find a less sum than fifty dollars, nor a greater sum than three hundred dollars.
    5th. That the word farm, as used in the statute sued od, means the land and ground occupied by defendant within his actual enclosure, and does not mean any land outside of the fences or actual enclosures of the ground by him, said defendant, occupied at f he time of his setting the prairie on fire.
    6th, That if the jury find from the evidence that the defendant wilfully set the prairie on fire outside of his own enclosure, upon his own land, with an intention not only to burn the same within and upon his own land outside of his enclosure or land occupied by him, but also with the intent to burn the same upon the land of Enoch Hughes, situate adjacent to his own and not occupied by him, and further find that by such setting said prairie on fire he burnt the same as well upon his own as upon said prairie land of said Hughes not occupied by said defendant, as also (hat the said fire did burn on and extend in its burning to the said lands of the Wrights and said Robards and burned and damaged their or either of their property mentioned in the declaration, that then they are bound to find their verdict for the plaintiff'.
    The court gave ihe first, second and fourth, and refused to give the third, fifth and sixth of said instructions,
    The defendant asked three instructions, the first and second of which the court gave, and refused the third. They are as follows:
    1st. Even if the jury find that the defendant set on fire the dead grass and that this fire occasioned to Robards and other persons mentioned in the declaration, the damage therein alleged, yet if they also find that the land where the fire was set at the time, was used and claimed by the defendant as a part of his farm, they must find for the defendant unless they further find that the defendant did the act complained of with intention to set on fire the adjacent prairie not occupied by him.
    2d. The declaration charges that the defendant set on fire the praiiie not occupied by him, and Iherefore the plaintiff cannot recover in this action unless the jury are satisfied from the evidence that the defendant did set on fire the prairie not occupied by him.
    Sd. Even if the jury find that the defendant set on fire the dead grass and that this fire occasioned to Robards and the other persons mentioned in the declaration the damages therein alleged, yet if they also find that the land where the fire was set was at the time used and claimed by the defendant as a part of his farm, although unenclosed, they must find for the defendant, unless they also find that the defendant did the act complained of with intent to injure others, and that the burthen of proving this intention is upon the plaintiff.
    Hayden for appellant.
    The counsel for plaintiff in the arrangement of tfie cause in this court will insist upon the following points;
    1st. That it was only necessary for the plaintiff to prove in support of his action that the defendant did wilfully set on fire the prairie mentioned in the declaration, at or about the time mentioned in the declaration, wheieby the said Robards and Wrights, or some one of 1 them were damnified as alleged in the declaration.
    2d. That the court erred in permitting the defendant to give evidence conducing to show that the defendant, Langston, claimed to be the owner of the land ontside of his said enclosure or faim, and also in permitting him, Langston, to give evidence that he fed to his cattle stock corn outside of his said enclosure, near where the fire was set prior to the commencement of this suit.
    3d. The court erred in refusing a new ttial to plaintiff upon his said motion therefor.
    Leonard for áppellee.
    1st. The testimony in relation to the extent and boundary of the defendants possession was legal evidence.
    Doe vs. Arkwright, 24 Eng. Com. Law Rep. 463-4.
    2d. The word “farm,’’ used in the fifth section of the act concerning “woods, marshes and prairies.” (Rev. Stat, of 1835, page —) ought not to be confined to that portion of a farmers possessions that is actually enclosed with a fence, that is not the ordinary meaning of the word in the United States, and as used in this statute it ought to receive a liberal interpretation so as to meet the necessities of the country, and where the extent of its meaning is the question in a penal prosecution upon the statute; it ought to reieive the largest meaning so as to exempt the partyfrom the infliction of the penalty. Webster’s dictinary word ‘farm’ 1 Blac Com. 61, United States vs. Wiltberger 5 Wheaton’s Rep. 95 and 96.
    3d. The plaintiff in his declaration having charged the defendant with setting on fire prairie not occupied by him, was not at liberty to abandon in proof his own description of the land to which the fire had been set, and prove the firing of prairie in the defendants occupation any more than he would have been at liberty after alleging the firing to have been of the two mile pra'rie to have proved it to have been of Thralls prairie in the sainé county, on this ground the plaintiffs third and sixth instructions were refused, and the defendants second instruction given.
   Napton, judge,

delivered tbe opinion of the court.

This proceeding was founded on the statute to prevent the firing of woods, marshes and prairies. The statute is very plain, and scarcely admits of misconstruction. It declares that whoever wilfully sets on fire a prairie, marsh or woods, and that fire occasions damage to another, shall forfeit a specified penalty. It is also provided that this penalty shall not be exacted where a person is burning up any thing on his own farm and the fire accidentally escapes to an adjoining prairie or woods.

The facts of the present case were these : The defendant put out fire in the prairie outside of his field fence, and the wind being high, it spread rapidly and consumed the fences and grain stacks of two or three of his neighbors. That such a case comes within the statute is clear enough; but proof was allowed to be introduced to show that the land where the fire was set out, belonged to the defendant, and that he was in the habit of throwing his stock fodder over the fence upon the ground where the fire was started. This evidence was totally irrelevant. It was immaterial whether the defendant put out the fire upon his own land, or upon land belonging to the United States, or any one else. The question of title has nothing to do with the case. The statute makes no distinction between setting fire on - vacant land or land belonging to another than the person doing the act, and putting out fire upon their own land. Nor is the fact that cattle were accustomed to be fed outside of the defendant’s enclosure and upon the land where the fire was started, any defence to the action. If it were so, the statute, so far as the protection of prairie farms is concerned would be a buriurn fulmen. Men are usually very sharp sighted and cautious in matters where their own interest is involved, and there is but little danger from fires put out within enclosures for the purpose of burning up brush stubble or other offensive or superfluous matter. Such fires must first consume the fences of those who start them before they can damage their neighbors. This was permitted by the legislature believing, no doubt, that self interest would induce caution. But knowing that persons who set fire around their own farms to protect them from future conflagration, are not so watchful of the interest of their neighbors as of their own, the legislature declared such act to be_done at the peril of him who attempts it. If damage results the perpetrator must pay for it, no matter what may have been his motive. Every one who is conversant with the modes of farming in the prairie portion of our State, is aware that the practice of setting out fire near to the farm fence, with a view to protect it, is attended with great danger to the neighboring proprietors, and this practice is obviously the one designed to be furnished by our law. It is equally well known that the practice of feeding stock on the outside of the farm, in the vicinity of the fences, is almost universally prevalent. So that if this circumstance justifies the proprietor, the law is a dead letter.

We do not wish it to be inferred that we would confine the word “farm,” as used in the statute, exclusively to enclosures. Cases might, no doubt, be put where a farmer would not be responsible for unintentionally firing the woods or prairie, by setting out fire outside of his enclosures. In clearing timbered land, fires are set out to burn up the brush and roots and log heaps before the fence is built, and it would be readily admitted that if this was the sole design of the fire, the farmer would not be answerable, if it accidentally escaped into an adjoining prairie or woods. Other instances might be suggested, but we think there is no difficulty in distinguishing all such cases from the one against which the statute is aimed.

We shall not advert particularly to the instructions in this case. The second instruction given at the plaintiffs instance is a singular one, coming from the quarter it did. That the court gave it can certainly be no ground of complaint here.

We shall reverse the judgment, because evidence was admitted calculated to mislead the jury.

The other judges concurring, judgment reversed and the case remanded.  