Dewey v. Leonard

At common law every person is bound to use liis own property witli due regard to tire rights of others, and although it is lawful for a person to burn the grass and stubble on his own land, he is not at liberty to do so, when, on account of time, manner or circumstances, it appears probable that danger to others will follow. In this, as in every other use of his property, he is bound to exercisé'such care and diligence as an honest and prudent man would observe to prevent accident and damage to others. An action is maintainable to set aside an award on account of fraud.

Tbe plaintiff commenced ber action in tbe District Court of Winona county, averring in ber complaint, that sbe was at tbe time tbe wrongs complained of were committed tbe owner and occupant of certain real estate in that county and tbe defendant was in tbe occupancy of certain adjacent lands; and that on the lltb of May, 1866, the defendant did “ wilfully, unlawfully, negligently and without giving any notice to plaintiff, set fire to tbe grass, straw and stubble on bis said land, which ran into, over and upon tbe land of tbe plaintiff, and burnt over and destroyed a large quantity of fence and timber being on said land, and tbe property of tbe plaintiff, and of tbe reasonable value of four hundred dollars, all of which was caused by tbe carelessness and unlawful acts of tbe defendant.” Tbe complaint then avers that in July, 1866, tbe parties agreed to submit the differences between them, arising out of the claim of plaintiff against defendant for damages caused by said fire to Weeks and Swift as arbitrators, who “ should examine the premises and all the circumstances of the case, and bear the evidence of the parties and determine what damages if any the plaintiff was entitled to receive from defendant, and make an award accordingly. That the said Weeks and Swift as such arbitrators agreed to examine into the facts and circumstances, and hear the evidence, and notify the parties of the time and place appointed to hear the evidence, and make a fair and correct award within five days thereafter.” The complaint then avers that the arbitrators made their award on the first of August,. 1866, in favor of the plaintiff, awarding her ten dollars in full, which award it avers she never accepted. It then alleges divers acts on the part of the arbitrators that are described as of gross carelessness, misconduct and partiality in their proceedings in the matter, closing with the averment, “ that by reason of the aforesaid gross misconduct and partiality of said arbitrators, and the gross inadequacy of their said award, the plaintiff submits that their acts in the premises are wholly null and void ” —and the relief sought is that the award and submission be decreed null and void, and wholly set aside, and the usual general prayer is added. The defendant interposed a general demurrer to the complaint,'which was overruled by the Court, and he appeals from the order overruling the same to this Court. I. — It was not an “ unlawful ” act on the part of the respondent to “ set fire to the grass, straw and stubble on his said land ” in the manner it is alleged in the complaint to have been done on the 11th of May, 1866. a. By the provisions of Chapter 72, Laws of 1860, then in force, the inhibition was simply against setting on fire any “ woods, prairies or other grounds, ” and not against the commission of an act like the one complained of. b. Even though it were, the first two provisos in the act, being embraced in the same section creating the misdemeanor, as a question of pleading should be negatived, in order to make a case of violation of the provisions of that act, which was manifestly intended by the pleader in the present instance. Buck is the rule in criminal pleading, and the same general rules prevail in civil causes. 1 Arch. Grim. L., 287, and the principle is virtually conceded by this Court in State vs. Johnson, 12 Minn., 4-79. c. On the familiar j>rinciple of the expression of one thing by necessary implication excluding others, this statute permits burning of the kind in question. cl. The last proviso in the statute cited, has reference solely to the errors that are made criminal by that act and has no application to lawful burning of grass, straw or stubble on one’s own land. e. Therefore the averment of the complaint that defendant wilfully, unlawfully, negligently and without giving any notice to plaintiff, set fire to the grass, grain and stubble on his own land amounts to nothing in the absence of any allegation of negligence or malice on his part in the way of permitting or causing the fire to run over on to the plaintiff's premises and do the damage stated. The demurrer only admits such facts as are well pleaded. Baeon Abr. Pleas. B. 3. II. — The complaint is defective in failing to show the character of the arbitration, whether a common law or statutory one. The statute then in force on the subject of arbitrations, provided the- means of vacating the award on grounds of corruption, fraud or partiality, which, we apprehend, is exclusive of all other remedies. Statutes, Ed. 1858, p. 691. Under a.corresponding English statute, 9 The arbitrators gave no notice of the time and place of hearing. Either or any of these causes would be good ground for setting aside the award. In fact it is not claimed that the complaint does not state sufficient ground for avoiding the award. But it is claimed that if the facts alleged in the complaint be true, the respondent might have disregarded the award and brought suit on the original caiise of action, and then if the award were set up by way of defense, the facts alleged in the complaint might have been set up by way of reply. That having a complete remedy at law the respondent could not ask the aid of a court of equity. Even if true that respondent might have adopted this course yet we submit that appellant’s argument is an unsound and false interpretation of the rule “that equity will not entertain jurisdiction where there is a remedy at law.” The books everywhere abound with cases brought for the same relief asked for in the case at bar. If appellant’s argument be correct then in no case could an action be brought to set aside an award. For in every case if the complaint does not allege sufficient grounds for avoiding the award, it would be demurrable as not alleging enough, and if it did allege sufficient to avoid the award, then according to the appellant’s theory, it would be demur-rable as showing too much. Suppose in this case the arbitrators bad by reason ot gross partiality given an award of $1000 against appellant. Appellant, according to his own theory, could maintain no action to set aside the award, but must sit still until efforts were made to collect the award and then set up the facts in defense. Is it true that a party is compelled thus to sit still perhaps for years while his evidence is disappearing by lapse of time? If, as appellant claims, respondent cannot maintain his action because he has another remedy, then by the same process of reasoning it would bo claimed that a judgment creditor could not maintain a suit to set aside a fraudulent conveyance of the judgment debtor, because, forsooth, ho might have disregarded the conveyance, treated it as a nullity and issued execution on his judgment and levied on the property notwithstanding the conveyance. There are many such cases where a party may have two remedies and because he has one it does not follow that it is the exclusive one. Courts of equity and courts of law always had concurrent jurisdiction in cases of fraud and many other classes of cases. Nor do we understand that in abolishing the distinction between courts of law and courts of equity, and allowing a party to plead both legal and equitable defenses, our code of practice has in any way changed or altered the character or substantial form of a party’s remedy in cases of this kind. But we submit that not only was this action properly brought by respondent, but that it was his only and exclusive remedy. Because the submission being valid and the award regular and sufficient upon its face, the award could not have been impeached collaterally but only by bill brought directly for the specific purpose of setting it aside. 5 Wend., 518 ; 23 Barb., 187; 3 Johnson, 367; 9 Jolmson, 212; ^ Johnson, 62; 17 Jolmson, 405.