Grannis v. Cummings , 25 Conn. 165 ( 1856 )

Storrs, J.

The third count of the declaration in this case, on which alone the questions, which have been made before us, arise, is founded on the statute which provides that “ every person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all the damages done by such fire.” Rev. Stat. tit. 1, § 27?, p. 148.

The first question is, whether this statute gives an action to the person whose land has been injured by a fire set on it by another person, or only to a person whose land has been injured in consequence of- a fire running upon it, which was originally set upon the land of another person. The judge below instructed the jury that it applied only to the latter case; and in this we think that.he was correct. Taking the whole language of the statute together, this construction is in accordance with its natural and proper meaning, whereas that claimed by the plaintiff would be very forced and unnatural. The law plainly contemplated an injury to a person from a fire running upon his land which had been set on the land of another person. The act for which it gives an action is, not merely setting fire on land, but the setting fire on any land “that shall rum, upon the land of another.per son; ” and by such “ other person,” was intended a proprietor of land other than the one on whose land the fire was set. The statute first speaks of the land on which the fire should be set, and then of its running upon the land of any other person ; meaning, of course, a different person from the one on whose land the fire should be set. It was intended to provide that the damage which may be recovered shall be that which is occasioned, not to the land on which the fire was set, but to the land of another person upon which it should afterwards run; and contemplated a ease where fire should be set on the land of one person, and from thence run on or spread upon the land of another, which should be injured by such running or spreading of the fire. It is also clear from reading the statute, that by “ the ownerf to whom an action is given to recover his damages, is meant the owner of the land upon which the fire had run after it had been set upon the land of another person.

That this is the true meaning of this law, is yet more clear if we look at the mischief intended to be remedied by it. It is a purely remedial statute, the object of which plainly was, to furnish a remedy to the owner of land where he had previously no redress, in the case of an injury done to it by fire communicated to it, which had been set on the land of another person. By the common law there was no redress in such cases unless the person who set the fire did so for the purpose of injuring the land of another, or was guilty of negligence in not preventing it from spreading beyond his own land. 1 Selwyn N. P., (by Wheaton,) 334, n. Clark v. Foot, 8 Johns., 421. Whether on account of the difficulty of proving that such injury was caused by design or negligence, or because it was deemed more just that the loss should be borne by the person who caused, than by him who suffered from it, the law in question was passed obviously, for the purpose of furnishing redress in all cases to the owner of land thus injured, against the person who caused such injury by setting a fire on the land of another. In the case, however, of an injury done to land in consequence of a fire being set directly upon it, it is difficult to conceive why a more ample remedy should be provided than the common law furnishes.

The plaintiff claimed on the trial, that the defendant was in the possession of that part of the lot of the plaintiff on which the fire was set by him, and that therefore, as to such part, it was the land, not of the plaintiff, but of the defendant. The court charged the jury that if the defendant was in the use of the lot of the plaintiff only for the limited purpose of cutting wood, and manufacturing it into coal, under and according to the contract which has been made between the parties, and the plaintiff was in possession of the lot for all other purposes, it was not a case where the fire was set upon the land of the defendant and ran upon the land of the plaintiff. This instruction was, in our opinion, correct. On the facts upon which it was predicated, the part of the lot on which the fire was set, was not, in any sense, the land of the defendant. The contract impliedly gave him a licence to go upon the lot and do the acts required by it; but it conveyed no estate or interest in the land or any part of it. • It did not amount to a lease, or even to the grant of an easement. Nor did the use of the land by the defendant, for the purpose only of doing such particular acts as those specified in that contract, constitute a possession of it by him, or displace the possession of the plaintiff. It was only a transient and temporary use of the land by him, not as the owner or proprietor of it, or as having any interest or estate in it, but only as a convenient place for the purpose of doing the acts required by the contract, in which the parties had a mutual and equal interest, but which had no reference to the possession of the land, and this is not considered in law as a possession of real estate.

We do not advise a new trial.

In this opinion, the other judges, Hinman and Ellsworth, concurred.

New trial not to be granted.