Burton v. Mcclellan

• Court: Illinois Supreme Court
• Writing for the Court: SMITH
• Citation: Burton v. Mcclellan, 2 Scam. 434, 3 Ill. 434, 1840 WL 2959 (Ill. 1840)
• Decision Date: 31 December 1840
• Parties: NATHANIEL BURTONv.JAMES MCCLELLAN.

2 Scam. 434

3 Ill. 434

1840 WL 2959 (Ill.)

NATHANIEL BURTON

v.JAMES MCCLELLAN.

Supreme Court of Illinois.

December Term, 1840.

THIS was an action of trespass on the case brought by Burton against McClellan, in the Kane circuit court.

The declaration alleged, that the “plaintiff, on the thirteenth day of December, in the year of our Lord one thousand eight hundred and thirty-eight, at the place aforesaid, was and still is possessed of about forty acres of land in said county, on which there were twenty stacks of wheat in the sheaf; twenty stacks of barley in the sheaf; twenty stacks of oats in the sheaf; five stacks of buckwheat, and five stacks of hay, around which there was a fence; all of which the defendant well knew; yet the said defendant, at the time and place aforesaid, wittingly, knowingly, and intentionally, kindled a fire on the prairies nearly adjoining the said premises of the said plaintiff, and so negligently and carelessly watched and tended the said fire, that the said fire came into and upon the said premises of the said plaintiff, and consumed the said stacks of grain and hay, and the said fence, of the value of eight hundred dollars; and also, one mile of staked and rail fence on the said premises being situate, of the value of two hundred dollars; and consumed the grass and stubble growing and being on said land, to the damage of the said plaintiff, of one thousand dollars.”

The defendant pleaded not guilty. The cause was tried at the September term of the court below, before the Hon. Thomas Ford and a jury. Verdict and judgment were rendered for the defendant.

The following bills of exceptions were taken:

“Be it remembered, that on the trial of this cause, it was proved, that the defendant had a field enclosed in the prairie, in the county of Kane, and that the plaintiff owned a field, north, about a mile distant from the field or enclosure of the defendant; that in the month of December, 1838, defendant set a fire in the prairie around his enclosure, burning a strip of land around it, for the purpose of protecting it and his fences from the prairie fire; and there was evidence tending to prove that this fire, thus set by the defendant, spread over the intervening prairie, and extended to and destroyed the plaintiff's stacks of grain, which were surrounded by grass, and exposed to be burnt by such fires; though there was other evidence tending to prove that there were other fires that extended to and destroyed plaintiff's stacks.

There was also evidence tending to prove, that there were fires burning on the prairie westerly of the defendant's field, and that a strong westerly wind was blowing, which was rapidly driving the fire towards the defendant's field, and would have reached it in ten or fifteen minutes; and that the direction of the wind was such, that it would have blown the fire directly to the plaintiff's stacks.

It was also proved, that this last mentioned fire would probably have destroyed the defendant's fence and crops, if he had not protected it by setting a back fire around his field as above mentioned, and that it would also have destroyed plaintiff's stacks.

The evidence conduced to prove, that the defendant commenced firing about the northwest corner of his field; that he extended his fire south, on the west side, and east, on the south side, to the south-east corner; and it was proved that when the fire got round the southeast corner, and was progressing with the wind to the northeast, in the direction of the plaintiff's stacks, the defendant said, ‘well it is gone, let it go.’ It was also proved that the plaintiff's stacks were situated in his field, on the prairie, surrounded with grass, and liable to be consumed by fires of the prairies, and that neither his stacks, nor the defendant's field had been ploughed around, or otherwise secured from fire.

The judge instructed the jury as follows:

First. That to make the defendant responsible, the jury must believe from the evidence, that he set the fire wilfully, or negligently, or that, lawfully having set it, he negligently permitted it to escape so as to burn the plaintiff's property.

Secondly. That if the fire had been set by some other person, which was threatening inevitable destruction to the defendant's own farm; and if, in consequence of that, the defendant set out fire around his own farm, for the necessary protection of his own property, and that such fire burnt the defendant's stacks exposed in the same manner the plaintiff's were, such setting fire by the defendant ought not to be considered to be wilful, though the fire was set in the month of December.

Thirdly. That if the defendant set the fire for the purpose set forth in the foregoing instruction, then he is not liable for damages, if he used everything reasonable in his power to prevent it from doing injury to the plaintiff.

Fourthly. That it was not...