110 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS 



offender liable for single or multiple damages irrespective 

 of the question of prudence in setting the fire or diligence 

 in his efforts to control it, l especially if the fire is 

 set within a certain closed season or without the sanction 

 of a permit from the proper official. 2 Under statutes re- 

 quiring notice before the burning a showing by the de- 

 fendant that the fire was set by necessity 3 or that the 

 plaintiff waived the notice is a good defense to an action 

 for statutory civil damages, 4 and if the plaintiff had notice 

 he can derive .no advantage from the failure of the de- 

 fendant to give the required notice to other adjoining own- 

 ers. 5 Whether the statute requires notice or not, it is 

 no defense to show that the property destroyed was in- 

 sured 6 or that the plaintiff has been indemnified for the 

 loss by the insurer. 7 The statutory action must be 

 brought either by or in the name of the party who owned 

 the property injured 8 and will not lie if the act complained 

 of is not clearly comprehended by the statute. 9 The 

 burning of pasture or cultivated land by a farmer has been 

 held not to be embraced within a statute prohibiting the 

 firing of the woods, 10 nor are bonfires in a backyard within 

 the terms of such a statute. n The jury will ordinarily be 



(Footnote 6 concluded from preceding page) 

 N. Y. Stuart v. Hawley, 22 Barb. 619; Clark v. Frost, 8 Johns 421. 



But see Webb v. Borne Etc. R. R. Co., 49 N. Y. 420, 10 Am. Rep. 389 

 (Affm'g 3 Lans. 453, and construing 6 Anne. Chap. 31, sec. 67. as amend- 

 ed by 14 Geo. Ill, Chap. 78, Sec. 76. 

 Wis. Fahn v. Reichert, 8 Wis. 255, 76 Am. Dec. 237. 



1. Conn v. May, 36 Iowa 241 ; cf. Brunell v. Hopkins, 42 Iowa 429. Lamb v. Sloan, 



94 N. C. 534. 



See Burroughs v. Housatonic R. R. Co., 15 Conn. 124, 38 Am. Dec. 64 (1842), and 

 especially pages 70 to 79 of 38 Am. Dec. 



2. Dunleavy v. Stockwell, 45 111. App. 230; Burton v. McClellan, 3 111. 434; Thoburn 



v. Campbell, 80 la. 338, 45 N. W. 759; Conn. v. May, 36 la. 241. 

 See Jarratt v. Apple, 31 Kan. 693, 3 Pac. 571; Hunt v. Haines, 25 Kan. 210; Emer- 

 son v. Gardiner, 8 Kan. 452. 



3. Lamb v. Sloan, 94 N. C. 534; Tyson v. Rasberry. 8 N. C. 60; Tiller v. Wilson, 1 



Lea, (Tenn.) 392. 



4. Lamb v. Sloan, 94 N. C. 534; Roberson v. Kirby, 52 N. C. 477. 



5. Saussy v. South Fla. R. Co., 22 Fla. 327. 



6. Dunleavy v. Stockwell, 45 111. App. 230. 



7. Hayward v. Cain, 105 Mass. 213. 



8. Rockingham Mut. F. Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618. See also 



Armstrong v. Colley, 10 111. 509. 



9. Grannis v. Cummings, 25 Conn. 165 (1856). Def. had license to occupy plaintiff's 



land. 



10. Acree v. The State, 122 Ga. 144, 50 S. E. 180; Brunell v. Hopkins, 42 Iowa 429; 



Emerson v. Gardiner, 8 Kan. 452 (Act. Fed. 16, 1860). But see Nail v. Taylor. 

 247 111. 580 (1910). 



11. McNemar v. Conn, 115 111. App. 31 (1904). 



