Dewey v. Leonard

[161] By the Court "Wilsoh, Cii. J. The plaintiff alleges that she was on, and prior to, the first of May, 1866, and ever since has been, the owner and occupant of the south-east quarter of section seventeen, township one hundred and six, north of range ten west; “ That on the 11th day of May, 1866, the defendant, who was then in the occupancy of certain lands adjacent thereto, and situated in section twenty of the same town and range, did, willfully, unlawfully and negligently, and without giving any notice to the plaintiff, set fire to the grass, straw and stubble on his said land, which ran into, over and upon the land of the plaintiff, and then and there burnt over, and destroyed a large quantity of fence, ahd timber, then and there being on said land, and the property of the plaintiff, and of the reasonable value of four hundred dollars; all of which was caused by the carelessness and unlawful acts of the defendant. ” The complaint then alleges a submission to arbitrators of the differences between the parties in the premises, and an award in favor of the plaintiff for a sum ($10.00) alleged to be much less than the damage, and asks to have the award set aside, on account of gross misconduct, and partiality of the arbitrators. The case comes before us on an appeal from an order of the District Court overruling a demurrer to the complaint; the defendant alleging that the complaint does not state facts sufficient to constitute a cause of action. The misconduct of the arbitrators, and the inadequacy of the award, (in her favor) do not give the plaintiff a right of action unless she shows resulting damage, or that she has a cause of action, which is interrupted by the submission and award. This is the only damage alleged. From the complaint, it would seem that the plaintiff attempted to set up a cause of action under Chap. 72 of the [162] Laws of 1860; but whether that is so, or not, is not material, for at common law, irrespective of the statute, every person is bound to use his own property with due regard to the rights of others, and although it was lawful for the defendant to burn the grass and stubble, he was not at liberty to do so, when, on account of the time, manner or circumstances, it appeared certain, or probable, that damage to others would follow. In this, as in any other 'use of his property, he was bound to exercise such care and diligence as an honest and prudent man would have observed to prevent accident and damage to others, and the complaint, liberally construed, we think, shows that he was guilty of negligence, all the facts of the case being considered. A general demurrer does not reach indefiniteness. Hence we are of the opinion, that the plaintiff has stated a cause of action for damages against the defendant, and that, therefore, she shows a ground for setting aside the award. We think that the complaint shows with sufficient certainty, that this submission was at common law, and not under the statute. The defendant’s third position, we think untenable. The equity powers of the courts are as great under our code as they were when law and equity were administered by distinct tribunals, and it does not need the citation of authorities to show that it has been, and is, a recognized power of a court of equity, to set aside awards on the ground of fraud, nor have we been able to discover any provision of statute requiring the party to seek relief only in an action brought in the matter submitted to arbitration. Whether the plaintiff ought to have joined the two causes of action, we need not now consider. The statute does not require her to do so. Order appealed from affirmed.