| N.C. | Jun 5, 1820
Lead Opinion
The act of Assembly was evidently (62) intended to prevent a deliberate or a wanton setting fire to the woods by the owner of land, without giving the requisite notice. It certainly did not contemplate the case of a man setting fire to his own woods to save his property or his land from the ravages of an approaching fire. To make the firing in such a case unlawful without notice was to compel a man to become a passive spectator of the destruction of his own property.
It is then only in cases where a notice must be given that the penalty can be incurred for not taking effectual care to extinguish the fire. If a person does not come within the act he cannot be liable for not doing anything enjoined by it; and the obligation to take effectual care is imposed on those only who are bound to give notice. There is another reason for this construction. The act requires effectual care to be taken to *38 (63) extinguish the fire, so that the party must extinguish it at all events, otherwise his care is ineffectual and he must pay the penalty. Although this might perhaps be exacted from a person who is at liberty to choose his own time to set the fire, and who may accordingly provide himself with the aid of his neighbors to prevent its spreading, yet it would be unreasonable to expect it from one who fires the woods from a sudden emergency and in his own defense. Nor is there any necessity for so harsh a construction of the law, for a person injured by the negligence of him who does the act has a remedy at common law. I therefore think the judgment ought to be reversed.
Addendum
Were it not for the word "effectual" in the statute I might possibly concur with the Circuit Judge. But it seems very unreasonable that a man should not be permitted to set fire to his own woods to preserve his own property from destruction unless he should take effectual means to extinguish the fire; his best exertions will not do. If such were the law the right of property would not be worth possessing. In such a case it would seem enough for him to repair the actual damages sustained by him who may have been injured; and if the present plaintiff is of that class let him bring his action for that purpose.
As the defendant is not within the penalty of the law, the firing being from necessity, he need not show that he took effectualor any care to extinguish the fire, for the last would be unavailing if he were within the penalty. There is good reason that the endeavors should be effectual in case of a voluntary firing, for as that is a thing of his own choice, in which he may select his own time, it is not unreasonable to compel a man to see that the means which he provides to extinguish the fire be sufficient for that purpose. That it was a voluntary firing which the Legislature intended to prohibit under a penalty I think is quite evident from the provision that notice should be given. (64) To prohibit a man from doing what he is strongly impelled to do by his very nature is not to be inferred from anything short of plain and evident words; and even if the words would well bear that meaning and another sensible construction can be given the latter shall be preferred as the true one. I think, therefore, that the court erred in instructing the jury that the defendant incurred the penalty, because he did not prove that he took effectual means to extinguish the fire. In this case it was not necessary that he should take any means, and I am of opinion that the rule for a new trial must be made absolute. Rule made absolute.
Cited: Lamb v. Sloan,