Ely v. Norfolk Southern R. Co.

• Decision Date: 18 February 1889
• Citation: 8 S.E. 779,102 N.C. 42
• Parties: ELY v. NORFOLK SOUTH. R. Co.
• Court: North Carolina Supreme Court

8 S.E. 779

102 N.C. 42

ELY v. NORFOLK SOUTH. R. Co.

Supreme Court of North Carolina

February 18, 1889.

Starke & Martin and E. C. Smith, for appellant.

Harvey Terry and Pruden & Vann, for appellee.

AVERY J.

This was a civil action, tried at the fall term, 1887, of the superior court of Pasquotank county, before GRAVES, J.

"The plaintiff alleges in this, his complaint: (1) That the defendant company, the Norfolk Southern Railroad Company, has laid a railroad track through the lands of the plaintiff for the distance of about two miles, and has cleared away the trees, bushes, and other growth upon both sides of the said track for a distance of fifty feet from the center of said track; (2) that on or about the 1st day of October, 1885, the said defendant company entered upon the land of the plaintiff, and cut the briers, reeds, and undergrowth along said railroad track running through plaintiff's land heaped the said rubbish in large piles of very inflammable matter, and carelessly directed the same to be set on fire in a very dry season, and negligently left the said fires to burn without necessary attendance; (3) that in consequence of such carelessness and negligent attention to and management of said fires along a line of a mile or more the fire escaped from the line of said track into the adjoining woodland of the plaintiff, and burned over a large area of the same, destroying and burning up large quantities of wood and timber, and burning, in many places, large holes in the soil, destroying the value of the land, and causing sinks, in which water accumulates, rendering the surrounding land a morass unfit for pasturage or any use, to the damage of the plaintiff two thousand dollars. For a second cause of action the plaintiff alleges that the defendant company, the Norfolk Southern Railroad Company, having laid a railroad track through plaintiff's lands for the distance of two miles, and having cleared away the bushes, trees, and other growth on either side of said track for a distance of fifty feet from the center of the same, did, on or about the 1st day of October, 1885, again cut away the briers, reeds, and other growth along the said track for a mile or more, and heaping the same in large piles, did willfully, unlawfully, and carelessly have them set on fire, without proper guard or attention; in consequence whereof the fire escaped into the adjoining woodland of the plaintiff, burning over a large area of the same, burning and destroying large quantities of wood and timber, and burning large holes in the soil, to the damage of the plaintiff two thousand dollars, contrary to the statute in such case made and provided, the said woods so set on fire not being the property of said defendant company, nor in their possession. For the third cause of action the plaintiff alleges that the defendant, having a railroad track running through the lands of the plaintiff for the distance of two miles or more, did, on or about the 1st day of October, 1885, heap in piles along the line of said track underbrush, reeds, briers, etc., and set fire to the same, which fire, escaping to the adjoining woodland of the plaintiff, burned and destroyed large quantities of wood and timber, and also burned large holes in the soil, to the damage of the plaintiff two thousand dollars, and contrary to the statute in such case made and provided, the said defendant not having given two days' written notice to the plaintiff before the firing of said woods. Wherefore the plaintiff prays judgment against said defendant company for the sum of two thousand dollars, for the costs of this action, and for such other relief as to justice may appertain." The answer denies each of the allegations of the complaint. The plaintiff tendered issues not material to be set out. The defendant tendered the following issues: "(1) Did the defendant enter upon plaintiff's land, cut and carelessly burn the undergrowth thereon, and negligently leave the fires burning, as alleged in paragraph two of the first cause of action in plaintiff's complaint? (2) Was any injury done plaintiff in consequence of such alleged carelessness and negligent conduct, as claimed in paragraph three of plaintiff's first cause of action, as set out in his complaint? (3) What damage, if any, was sustained by the plaintiff by reason of the defendant's carelessness and negligence?"

First Exception. These issues were refused, and the defendant excepted.

Second Exception. The court settled the issues as set out in the record, and the defendant excepted.

Testimony was then offered by plaintiff, tending to show that he owned the land; that it was woods or woodland; and tending to show that it had been set fire to negligently by defendant, and burned over; that he had sustained damage. Not having my memoranda of the testimony before me, I adopt defendant's statement:

Harvey Terry, as witness for plaintiff. He knew the tract. It was the land of plaintiff--belonged to plaintiff. It was a tract of woodland, through which defendant's railroad ran. About the 1st October, 1885, he saw defendant's hands set fire to the reeds and underbrush that had been cut down on the line of the railroad. It was a very dry time. The fire got across from the railroad right of way into plaintiff's woodland that adjoined it, and burned over an area of some 250 acres of land. It destroyed about 1,000 cords of wood, worth 50 cents a cord, standing. It damaged the land itself six dollars an acre by burning holes in the soil, rendering it unfit for cultivation or pasturage. He had been offered six dollars an acre for the land before and since the fire. On cross-examination witness stated that there was no wood growing on the railroad right of way,--only underbrush; and that he did not see the railroad hands put any fire on plaintiff's lands; that condemnation proceedings had been instituted to condemn a right of way through these lands, but he did not regard them as lawful; that there was some litigation pending touching the title to these lands through which the railroad ran, but that plaintiff was the owner of them. On redirect examination witness stated that he had been offered six dollars an acre for the land before and since the burning. Arthur Butt, another witness for plaintiff, testified that he had gone on the land last week. He was not present at the fire. The land was burnt full of holes. A good portion of the wood is burnt or blown down. Did not know the value of the land. He had gone only a few steps from the line of the railroad. C. D. Beal, another witness for plaintiff: That he had gone on the land about 150 yards from the railroad track. It was so wet he could not get in far. Green trees were burned up by the roots. The lands were valueless now. He did not know what they were worth before they were burnt. William Cartwright, another witness for plaintiff, testified that he saw the smoke, but did not go to the fire at the time. He subsequently went down the railroad track to see what damage had been done by the fire. He went a few steps on the land; not over 20 yards. It was seriously damaged. Had known an offer of five dollars per acre for lands in this vicinity, which might have embraced a portion of this very land. Peter Pritchard, another witness for plaintiff, testified that he was not present at the fire, but subsequently went to look and see what damage had been done. He did not go far from the railroad,--not more than 10, 15, or 20 yards,--it was so wet. He did not know what the land was worth before the fire, but it was seriously damaged by the fire. Harvey Terry, the first witness, was permitted to return to the stand to explain his testimony when, in his original testimony, he had stated that he had been offered six dollars an acre for the land before and since the fire, he had committed an error. He had not been offered that price for the land since the fire. John Whitehead, a witness for the defendant, testified that he was section master of the section of defendant's railroad where the burning occurred. He had four hands. The railroad right of way was cleared off every year. It had been cleared off the year before the burning in question. About the 1st October, 1885, he took his working force, and cut down the briers, reeds, and underbrush on the defendant's right of way that had grown up within the year preceding, and had them set on fire. He discovered that the fire was eating its way towards the adjoining woodland, and he directed a trench to be dug around it on defendant's right of way, and earth thrown upon it, which was done. He supposed the fire was extinguished, and only saw smoke ascending as from an extinguished fire. There was no wood upon the right of way, except now and then a pile of old decayed logs that had been cut down when the road was built. Mr. Harvey Terry was not present at any time while witness was there, and witness was there all the time while the hands were there. In the evening, when he left, he had no suspicion of danger,--thought he had taken every necessary precaution to suppress and extinguish the fire, and that end was fully accomplished. The...