GARY
A. J.
The
appeal herein is from a judgment entered up in favor of the
plaintiffs in two actions consolidated by order of the court.
The complaint in the first action was for damages by fire to
a tract of land known as the "Ramsey Tract" and the
"Home Place." The complaint in the second action
was also for damages by another fire to a tract of land known
as the "Douglas Tract" or "Doss Flat
Tract." Each of the complaints set forth two causes of
action,--one under section 1688 of the Revised Statutes, and
one at common law. Both tracts are situated along the right
of way of the defendant in Richland county. The answers
of the defendant in both cases were general denials. The
defendant appealed upon the following exceptions: "(1)
Because, this being an action for the recovery of damages
caused to land by burning over the same by sparks from
defendant's engines, his honor, against the objection of
the defendant, allowed the witness S. H. Dent to reply to the
question, 'Taking into consideration the value of this
land prior to the burning, taking into consideration the land
since the burning, taking into consideration the value of the
trees and wood and his turpentine trees, and taking into
consideration the value of the litter destroyed, what would
be your opinion as to the total amount of damages on these
two tracts of land?' the said question tending to bring
before the jury irrelevant matters of the value of the
turpentine trees and the value of the turpentine contained
therein, and the value of the litter upon the land, when it
is respectfully submitted that the inquiry was limited to the
value of the trees, land and all, as land, before the fire,
and to its value immediately after the fire, and should not
have extended the inquiry as to the value of the turpentine
or litter . (2) Because, against the objections
of the defendant, his honor allowed the witness S. H. Dent to
answer the question, ' Q. Taking into consideration the
injury done to the timber and to the litter, and in view of
the condition of it since the fire, as affected by the fire,
what, in your opinion, is the total amount on both of these
tracts?' when the witness had testified that he had not
examined both of the tracts, and when the question brought
into the consideration of the jury an irrelevant matter, to
wit, the value of the litter, as litter, which was destroyed
by the fire. (3) Because, against the objection of the
defendant, the court allowed the witness W. H. Frost to
testify as to his opinion as to the damages done, taking into
consideration the value of the litter upon the land, and also
as to the value of the turpentine destroyed, when it is
respectfully submitted that question was irrelevant and
incompetent. (4) Because, against the objection of defendant,
his honor allowed the witness George Taylor to testify as an
expert as to his opinion as to the damage done to saw timber
on lands in dispute, when it was shown that the said George
Taylor had no special knowledge. (5) Because, against the
objection of the defendant, the plaintiff W. H. Dent was
allowed to testify in response to the question, ' What
damage has been caused by this fire to your timber and the
land?' when it is respectfully submitted that the inquiry
was limited to the damages done to the land, as land, with
the timber standing on it, and that said question was
irrelevant and incompetent. (6) Because, against the
objection of the defendant, and during the progress of the
trial, the plaintiffs were allowed to amend one of their
complaints so as to charge the fire as having occurred on the
31st day of May, when it was alleged to have occurred on the
31st day of March, and the defendant was misled and not
prepared with proof as to a fire which had occurred on the
31st day of May. (7) Because his honor the presiding judge,
having allowed the amendment, refused to allow the defendant
further time for the preparation of its case,
and to ascertain and establish the facts with reference to
the fire which occurred on the 31st day of May, 1900. (8)
Because his honor charged the jury as follows, to wit: 'I
do not think the true measure of damage is the market value.
I think the plaintiffs are entitled to the property as it
stood before the fire, and, if you will as certain the value
of the property before it was burned, that is the measure of
the value, as I understand it. You are to consider the
location, the contour of the land, its location, the location
of the trees. Trees may be useful in one place, and more or
less useful in another place. You are to consider all these
matters, and say what it is worth, how much the plaintiff has
been damaged. '--when it is respectfully submitted that
the question of the difference between the market value of
the land before and after the fire was the real question for
consideration by the jury, and the instruction was calculated
to make the jury believe that they might take into
consideration fanciful estimates as to the value of the
lands.''
The
appellant's attorney in his argument thus succinctly
states the question presented by five of the exceptions, to
wit: "The first, second, third, fifth, and eighth may be
classed under one head, and that is that it was error for his
honor the circuit judge to admit the testimony as to the
value of turpentine trees, the value of turpentine in the
boxes thereon, and the value of litter upon the land,
irrespective of their connection with the freehold, and in
not limiting the jury in their estimate of the difference in
value of the realty, considered as such, before and after the
fire."
1. The
allegations of the first cause of action set forth in the
first of the complaints, which are material in considering
the question presented by these exceptions, are contained in
the third paragraph, which is as follows: "(3) That on
or about the 22d day of March, 1900, a fire was communicated
by or from the defendant's locomotive to the said tract
of land, and burned over fifty acres of the same, destroying
much valuable timber, many growing trees
including a large number of turpentine boxes, and all of the
vegetable matter, undergrowth, straw, and leaves which had
accumulated for years thereon, and upon which the value and
fertility of said land to a large extent depended, to the
damage of the plaintiffs $1,200, which the defendant is
required to pay by the act of the general assembly in such
case made and provided, which act is embodied in section 1688
of the Revised Statutes of 1893." The allegations of the
second cause of action
in said complaint which are material are set forth in the
third paragraph, which is as follows: "(3) That on or
about the 22d day of March, 1900, the defendant carelessly
and negligently omitted to use proper appliances...
