| Miss. | Mar 15, 1915
delivered the opinion of the court.
The court below committed no error in overruling appellant’s motion to require appellee to elect upon which count in his declaration lie would stand, for the reason that appellee is entitled to recover in one suit both his actual damages and the penalty of one hundred and fifty dollars prescribed by section 4988 of the Code. Railroad Co. v. Spencer, 72 Miss. 491" court="Miss." date_filed="1894-10-15" href="https://app.midpage.ai/document/kansas-city-memphis--birmingham-railroad-v-spencer-7987689?utm_source=webapp" opinion_id="7987689">72 Miss. 491, 17 So. 168.
The fact that at the time the fire occurred the land was not in. the actual possession of appellee, but was in the possession of a third person to whom he had leased it for one yeár, is immaterial. Leaving out of view appellee’s rights at common law, he was, of course, injured by the burning of the fence which was his property, and section 4988 of the Code expressly confers a right to recover damages from a person setting out fire on the land of another upon “the person injured thereby.” The one hundred and fifty dollar penalty provided for by this statute, in addition to the actual damages sustained, is “in favor of the owner,” so that appellee is entitled thereto, whether the owner there referred to is the owner of the land, or the buildings, fences, trees, etc., situated thereon, in event a separate ownership thereof should exist.
The proof of plaintiff’s title to the land consisted simply of evidence that he claimed it as his own, and had rented it for the year in which the fire occurred to a third person, who was then in possession as his tenant. This was sufficient. Dejarnett v. Haynes, 23 Miss. 600" court="Miss." date_filed="1852-01-15" href="https://app.midpage.ai/document/dejarnett-v-haynes-8256424?utm_source=webapp" opinion_id="8256424">23 Miss. 600; Ware v. Collins, 35 Miss. 223" court="Miss." date_filed="1858-04-15" href="https://app.midpage.ai/document/ware-v-collins-8257376?utm_source=webapp" opinion_id="8257376">35 Miss. 223, 72 Am. Dec. 122; McCleary v. Anthony, 54 Miss. 708" court="Miss." date_filed="1877-10-15" href="https://app.midpage.ai/document/mccleary-v-anthony-7984999?utm_source=webapp" opinion_id="7984999">54 Miss. 708; Darrill v. Dodds, 78
Conceding that, since appellee’s declaration alleged that appellant’s negligence consisted in its failure to equip “its engines with proper and necessary appliances, instruments, and spark arresters, so that fire could not be communicated to- any inflammable substance, or substance which was on either side of its said spur track,” etc., he thereby assumed the burden of proving this allegation, we think the burden was met by proof that the fire was set out from one of appellant’s passing engines, which at the time was emitting sparks as large as the little finger of one of the witnesses who testified thereto. Res ipsa loquitur.
Affirmed.