ON SUGGESTION OF ERROR. The appellant sued the appellee in Jefferson Davis county for damages sustained by it because of the alleged burning by the appellees of a bridge which spanned a stream crossing one of the public roads of the county. The damages sought to be recovered are the value of the bridge and the statutory penalty provided by section 4988, Code of 1906, Hemingway's 1927 Code, section 3452.
The road intersects a tract of land owned by Riley which was situated in both Lawrence and Jefferson Davis counties. The appellees all live in Lawrence county. The fire was set out by one of the appellees, for whose conduct Riley and the other appellee are alleged to be responsible, in dry grass on Riley's land near the bridge, and is alleged to have been wantonly, negligently, and carelessly allowed to be communicated to the bridge. It does not appear in which of the counties the fire was set out.
On motion by the appellees, the case was transferred to the circuit court of Lawrence county over the objection of the appellant, where it was tried, and judgment *Page 479 was rendered for the appellees. The claim of the appellees for a change of venue is based on the provision of section 1, chapter 155, Laws of 1926, Hemingway's 1927 Code, section 500, that, "if a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, . . . the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence."
This statute also provides that "Actions of trespass on land . . . shall be brought in the county where the land or some part thereof, is situated; but if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the county of his residence."
On a former day this court held that the road constitutes a separate tract of land, that the burning of the bridge in the manner alleged was a trespass thereon, and that, under the statute hereinbefore referred to, the venue of the action was in Jefferson Davis county, and should not have been changed to Lawrence county, and reversed the judgment of the court below.
Afterwards a suggestion of error was filed by the appellees.
On the former hearing, the case of Archibald v. Miss., etc., T.R. Co., 66 Miss. 424, 6 So. 238, 239, was not called to our attention.
After the coming in of the suggestion of error, the case came under our observation, and, on a request therefor by the court, counsel have submitted briefs discussing the applicability, vel non, of the case here.
"The term `trespass' in its broadest sense means any misfeasance, transgression, or offense which damages another's person, health, reputation or property, and as used in some statutes is equivalent to `tort.'" 38 Cyc. 994. This was the construction given the statute on the former hearing. The term "trespass," however, is frequently "used in a more limited sense . . . as designating *Page 480 an injury to the person, property or rights of another, which is the immediate result of some wrongful act committed with force, either actual or implied." 38 Cyc. 994.
In the Archibald case the court adopted this more limited definition of the word "trespass," and held that "the action of trespass on land, to become local under the statute, must contain the elements of force and entry necessary to constitute the common-law action of trespass quare clausum fregit." The statement of the court there that the action "is not to recover on account of an invasion of the possession of appellants, or for trespass committed on the land," states the exact situation here, if we substitute the word "appellee" for the word "appellant."
But it is said, in substance, by counsel for the appellant that that case is not controlling here when an amendment made to the statute after that case was decided, and which first appeared as chapter 166, Laws of 1908, and section 4988, Code of 1906, Hemingway's 1927 Code, section 3452, are taken into consideration. By the first of these statutes the venue statute, which now appears as chapter 155, Laws of 1926, Hemingway's 1927 Code, section 500, was amended by the insertion after the words, "actions of trespass on land," the words, "and actions for the statutory penalty for cutting and boxing trees and firing woods."
The second of these statutes is as follows:
"3452. By Firing Woods. — If any person shall set on fire any lands of another, or shall wantonly, negligently, or carelessly allow any fire to get into the lands of another, he shall be liable to the person injured thereby, not only for the injury to or destruction of buildings, fences, and the like, but for the burning and injury of trees, timber, and grass, and damage to the range as well; and shall moreover be liable to a penalty of one hundred and fifty dollars in favor of the owner." *Page 481
The amendment to the venue statute, hereinbefore set forth, deals only, on the face thereof, with the statutory penalties allowed for the removal of, or injury to, trees. But it is said by counsel for the appellant that, by the use of the words "firing woods," the legislature meant to make the statutory penalty for all acts referred to in section 4988, Code of 1906, Hemingway's 1927 Code, section 3452, local and not transitory. Had the legislature so intended, it could, as it ordinarily does, have unmistakably evidenced that intent by referring to the statute by its section number, and not by the unusual, and so far as we are aware, never before adopted, method of merely referring to it by its black letter heading, which headings to statutes are at times appended to a statute by the legislature itself, and at others by the person or commission charged with the duty of publishing it.
Another of the contentions of counsel for the appellant, as we understand their brief, is that, because the chapters of the Codes in which section 4988, Code of 1906, Hemingway's 1927 Code, section 3452, appear, are headed or entitled "Trespasses," the legislature thereby intended to designate the wanton, negligent, and careless allowing fires to get into the land of another as a trespass, within the meaning of that word, as used in chapter 155, Laws of 1926, Hemingway's 1927 Code, section 500.
The original of section 4988, Code of 1906, Hemingway's 1927 Code, section 3452, was in force when the Archibald case was decided, it then appearing in the Code of 1880 as section 2816 of the chapter on "Crimes and Misdemeanors," but was transferred in the Code of 1892 to chapter 138 thereof, headed "Trespasses," as section 4423 thereof. The section confers no new right or remedy for the wrongs therein enumerated, except the right to a fixed penalty or value for the injuries resulting therefrom to be recovered in addition to actual damages. The main purpose of the section, as of the other sections in the chapter, is to provide a penalty for the commission *Page 482 of the wrongs therein enumerated. It cannot, therefore, be held to have intended to broaden the meaning of the word "trespass" in the venue statute.
From this it follows that this suit should have been brought in the county of the residence of the appellees, and therefore no error was committed in transferring it to that county.
The suggestion of error will be sustained, the judgment hereinbefore rendered, reversing the judgment of the court below, will be set aside, the former opinion will be withdrawn, and the case will be remanded to the docket for hearing before Division A on the first call of the docket by it in September next.
The reason for remanding the case to the docket is that it appears from the record that jurisdiction over the road, of which the burned bridge is a part, was transferred by the board of supervisors of Jefferson Davis county to, and was accepted by, the state highway department, which department, according to the contention of counsel for the appellees, is charged with the duty of replacing the bridge, and therefore that the right of action here is not in the county, but in the state highway department. The question thus presented is of such importance to the state highway department and the public generally that the court is of the opinion that the state highway department should be heard thereon, if it so desires, before the question is decided. Leave to file such a brief is hereby given, this brief and the replies thereto to be filed in accordance with the rules of the court. So ordered.