Finley ex rel. Boone Cnty. v. Langston

• Citation: 12 Mo. 120
• Parties: FINLEY, TO USE OF BOONE COUNTY, v. LANGSTON.
• Decision Date: 31 July 1848
• Court: United States State Supreme Court of Missouri

12 Mo. 120

FINLEY, TO USE OF BOONE COUNTY,

v.LANGSTON.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM BOONE CIRCUIT COURT.

This was a qui tam action, by Finley against Langston, in the Boone Circuit Court, to recover the penalty of three hundred dollars, given by the first section of the act of the 26th of January, 1835, against the firing of woods, marshes and prairies. The declaration charges that the defendant willfully set on fire the two-mile prairie, not occupied by him, with intent to burn the same, and thereby burned up the fences, grain and hay of three persons, Robards and the two Wrights. The cause was tried on the plea of nil debet at the last August term, when the defendant had a verdict and judgment, from which the plaintiff has appealed to this court.

Upon the trial it appeared in evidence that in the fall of 1844, the plaintiff, defendant, Robards and the two Wrights, lived on the two-mile prairie in Boone county, that west of the defendant's field, and north of Mrs. Mode, which joined the defendants on the south, and extended west of it, there was a triangular piece of prairie cut off from the main body of the prairie by a drain five or six feet deep and wide, for the purpose of saving their farms from being burned. The defendant proposed to Mrs. Mode's son to burn the grass off of this triangular piece of ground, and went out for that purpose; the wind, however, being too high, they desisted on that day, but two or three days afterwards went out again, and the defendant set fire to the grass, which spreading rapidly, burned up the rails, grain and hay of Robards and the two Wrights. Enoch Hughes owned the quarter section of land west of the defendants, so that the triangular piece of land before referred to, belonged partly to the defendant and partly to Mr. Hughes. This piece of land was occupied by the defendant for the feeding of his stock, and it was here and on that part of it that belonged to the defendant that the fire was put out.

Upon the trial the defendant offered to prove by a witness, Mr. St. John, that the defendant's fence was not on his line, and that his land extended beyond his fence, which was objected to by the plaintiff, and the objection being overruled, the witness testified that the defendant claimed land outside of his fence, but to what extent witness did not know.

Another witness, Mr. Mode, testified that the defendant claimed the land outside of his fence to a stone or stake about half way between the southwest corner of his field and the drain, which was also objected to by the plaintiff.

A third witness, McGuire, testified that the defendant's farm was on the notheast quarter of section 32, that some years since he ran the line between the defendant and Mode, and planted a stake at the southwest corner of the defendant's land, which was three chains distant from his field and about half way between the field and the drain, and to this evidence the plaintiff also objected.

The plaintiff asked six instructions, as follows: 1st. That if the jury find from the evidence that prior to the commencement of this suit, the defendant, Langston, willfully set on fire the said prairie in the declaration mentioned, and that the place where said defendant sat the fire in the prairie was not on the farm of the said Langston, nor occupied by him, said defendant: and further find that the said firing of said prairie by said Langston occasioned any damage to the said Wm. Robards, Thomas Wright, and Samuel Wright, or to either of them by burning their or either of their property, as stated in the declaration, that then they are bound to find their verdict for the plaintiffs. 2nd. That if the jury find from the evidence that the defendant willfully set the prairie on fire outside of his own inclosure, upon his own land, and not on his farm, or occupied by him, with an intention not only to burn the same within and upon his own land outside of his inclosure, or land occupied by him, but also with the intent to burn the same upon the land of Enoch Hughes, situate adjacent to his own and not occupied by him, and further find that by such setting said prairie on fire he burnt the same as well upon his own as upon said prairie land of said Hughes, not occupied by said defendant, as also that the said fire did burn on and extend in its burning to the said lands of the Wrights and said Robards, and burned and damaged their or either of their property mentioned in the declaration, that then they are bound to find their verdict for the plaintiff. 3rd. That although they find from the evidence that defendant set the fire upon his own farm, yet if they further find that it was done with intent to burn the prairie adjacent to his own farm, and not at the time occupied by him, and that such burning did occasion damage to William Robards or Thomas and Samuel Wright, they must find their verdict for the plaintiff. 4th. That if they find for the plaintiff they cannot find a less sum than fifty dollars, nor a greater sum than three hundred dollars. 5th. That the word farm, as used in the statute sued on, means the land and ground occupied by defendant within his actual inclosure, and does not mean any land outside of the fences or actual inclosures of the ground by him, said defendant, occupied at the time of his setting the prairie on fire. 6th. That if the jury find from the evidence that the defendant willfully set the prairie on fire outside of his own inclosure, upon his own land, with an intention not only to burn the same within and upon his own land outside of his inclosure or land occupied by him, but also with the intent to burn the same upon the land of Enoch Hughes, situate...