Los Angeles herald., 1891-07-02
An Opinion in the Case Of
GARNER VS.. Porter.
It Is Settled by a Supreme
Court Decision.
Other Matters Acted Upon Yesterday
in the Courts.
Land Company Sued-Interesting Cases
which Were Considered-Note
and Incidents.

Camille GARNER and Leon GARNER, ap-
pellants, VS.. Geo. X. Porter, respondent.
The case was taken up on judgment
in favor OF the defendant rendered by
Judge Tan Dyke, and on an order refus-
ing a new trial. A synopsis of the opin-
ion follows:
This action is for damages for the
destruction of hay, grasses and pasture
on $3.50 acres of land. 1t is charged that
defendant willfully and negligently
kindled fire on his land and set fire to
grasses growing thereon in the vicinity
of the plaintiffs land, and so negligently
watched and tended the said fire that it
spread over the intermediate space and
came to and spread over the plaintiffs
land and consumed the hay, grasses,
pasture, etc.
plaintiffs claim that they were dam
aged in the sum Of $4,000, and that by
reason of section 1914 of the political
code they are entitled to judgment for
treble that sum.
"Ihe answer contained general de-
NAL. A jury having been named, the
action was tried by the court, which
found for the defendant, specifically neg
ativing all the material allegations of
the complaint and also finding that said
fire did not come upon the lands 80 oc-
cupied by the plaintiffs, or any portion
thereof, by reason of any negligence on
on the part of the defendant whatever.
"We think the findings sufficient and
there is undoubtedly evidence to sustain
them. But the plaintiffs contend that
thea of defendant in setting fire to the
stubble on his own lands, although an
ordinary agricultural process, was un
lawful, and therefore the defendant is
liable for the natural consequences, ir-
respective of the question of negligence.
This is supposed to be the effect of
section 3S4 of the penal code, which is
as follows: Every person who willfully
or negligently sets fire, or causes or pro-
cures to be set on fire, any woods,
prairies, grasses or grain, on any lands,
is guilty of misdemeanor. The section is
similar to section 142 of the act concern
ing crimes and punishments, passed
April 16, 1850. That contained, how
ever, proviso excepting fires set by any
one near his own farm for the necessary
preservation thereof, after giving notice
to his neighbors.
''In 1872 an act was passed making it
misdemeanor to set fire to any wooded
country or forest belonging to the state
or United States.
''Section 3344 OF the political code pro-
vides that any one negligently setting
fire to his own woods or negligently suf
fering any fire to extend beyond his own
lands is liable in treble damages to the
party injured. If one sets fire
to the weeds or brush on his own land
80 as to prepare it for the plow, intend
ing to limit and control the fire, and
actually does so, he has not set fire to
the prairies within the meaning OF this
statute. If under such circumstances
the fire gets out OF his control, he has
set fire to the prairie, but not willfglly,
although it may be negligently.
''In this case, the defendant, when
the fire got away from him and spread
over the lands OF the plaintiffs, was en-
gagged in back firing: And there
due care in setting the fire and due dill
gence in endeavoring to control it after
it had spread from his own land
eve think the Judgment and order
should be affirmed"
The opinion is written by Commits
sioner Temple and endorsed by the
court.
ELSINORE LAND COMPANY STOCK.
The trial of the case of .A.Sawtelle vs..
the Elsnore Land and Water company,
Hannah I. Yocum and j. D. Yocum, the
la tier of whom is the president of the
above-named corporation, began yester-
day before Judge Mckinley in depart
ment five of the superior court and
went over at the adiourning hour till
today. Sawtelle sues to regain posses
sion of S093 shares of stock in the de-
fendant company, which, he alleges,
were fraudulertly transferred on tine
books of the company from him to
Hannah T. Yocum, without his
consent. He also asks for
an alternative judgment for $24, ,279,
the value of the stock at So per share.
In his answer, j. D. Yocum alleges that
the stock originally belonged to him;
that he appointed Sawtelle his attorney
in fact, and that the latter, without Yo-
Gums knowledge, transferred the stock
to one w. H. Wakeley and had it re-
transferred to himself without consider
alton. Yocum never recognized this
4nhpsfer, and the stock was sold at auc-
Il and bid in by Hannah T. Yocufh on
judgment obtained against ]. D. Yo-
cum. The trial will be concluded today.
COURT NOTES.
Judgments were ordered for the
plaintiffs yesterday by Judge Van Dyke
in the two cases of George M. Campbell
ct al. vs. D. Arnold ct al. The suits
were for the foreclosure of mortgages
amounting in the aggregate to about
$4,000. Attorneys fees Of 1915 were al
lowed in one case and $3.50 in the other.
Judgment was entered by consent.
Judge Wade yesterday ordered a de-
cree entered for the plaintiff in the di-
vorce suit of Mrs. A. S. Webb vs.. j.
Webb, after hearing the testimony OF
Anna r. Stow and Mrs. A. s. Webb.
The grounds were cruelty and desertion.
The case of Williams vs.. Fulton, an
action to quiet title to a strip of land
twenty feet wide on Seventh street, was
on trial yesterday before Judge Wade.
At the hour of adjournment the case was
continued indefinitely.
Judge Clark yesterday granted de-
cree Of divorce to Mamie Wilson from
her husband, John Wilson, on the
grounds of desertion.
NEW CASES.
Jose de Arnaz sues Andreas Domin-
r,,o, 70 foroo1ooo rnortOoUo Oivop IN