Dissenting. — "While it was alleged in the complaint that the fire “was negligently permitted by said defendant to spread northward from the defendant’s said right of way into the pasture grass of plaintiff’s said land next to and adjoining said right of way,” the evidence discloses ho negligence other than the failure of appellant to keep its right of way free from combustible material.
I cannot agree with the majority opinion that C. S., sec. 2948, is either in any manner controlling or has any application to the ease at hand. That section is part of an- act designed and enacted for the sole purpose of preventing forest fires. I am unable to see wherein the rule, “That prior acts may be resorted to to solve but not to create an ambiguity,” has any application to the question before us. There is no contention that the language of the above section is ambiguous. The contention is that the purpose of the act must be (resorted to-in order to determine its meaning and scope. This is a well-settled rule which has been clearly announced by this court. (Rural High School Dist. No. 1 v. School Dist. No. 37, 32, Ida. 325, 182 Pac. 859; Wood v. Independent School Dist., 21 Ida. 734, 124, Pac. 780; Colburn v. Wilson, 24 Ida. 94, 132 Pac. 579.)
The original act of 1907 (Sess. Laws 1907, p. 18, sec. 7), in which C. S., sec. 2948, first appeared, related solely to the prevention of forest fires. That act was re-enacted in' the Revised Codes (Rev. Codes, title 9, chap. 4, sec. 1610), and given á chapter by itself relating solely to forest fires. That chapter was amended by the act of 1909a(Sess. Laws 1909, p. 227, sec. 6), which related solely to' forest fires, the only amendment in see. 2948 being the change of the closed season from May 1st to October 1st to from June 1st to October 1st of each year. As so amended the act was re-enacted in the Com*649piled Laws (C. L., title 22, chap. 124, sec. 1610), in a chapter relating solely to forest fires, and the section now appears in the Compiled Statutes in the same relation (C. S., title 24, chap. 132). Since it is a part of a general law relating solely to the prevention of forest fires, the language of the section must be read and its meaning determined with that purpose in view, and it cannot properly be construed as.having any further application. The subject matter of the entire law of which see. 2948 is a part must be considered in ascertaining the meaning and scope of the section. It is an elementary principle and rule of statutory construction that all acts and parts of acts relating to the same subject matter are to be construed in pari materia. (2 Lewis’ Sutherland on Statutory Construction, 2d ed., secs. 443-448; Noble v. Bragaw, 12 Ida. 268, 85 Pac. 903.)
Moreover, this section has the same meaning in the Compiled Statutes that it had in the original act of which it was a part. The rule is thus stated by Sutherland:
“ .... The mere re-enactment of a statute in a code or revision 'has been held not to change its meaning, construction or effect. And this is held to be true though the sections of an act are separated and are arranged in different connections. Where the general language of an act is restrained by its title it will have the same limited meaning when incorporated into a code without the title.” (2 Lewis’ Sutherland on Statutory Construction, 2d ed., sec. 451, and cases there cited in notes 97, 98 and 99.)
Viewed in the light of the foregoing rules it is perfectly apparent that the legislature never intended by the section in question to require railroads to keep their rights of way clear of combustible materials except in timbered lands or in the immediate vicinity thereof, and there only during the closed season, nor to penalize them except in such cases. The statute, therefore, has no application to the present action.
Within the prohibited zone (timbered country) to which the statute (C. S., sec. 2948) applies, the railway company would be liable for damage resulting from fire spreading from its right of way if the latter were not free from com*650bustible material, but outside of the zone the statute does not apply, and the company would only be liable in the event it caused the fire, or negligently permitted it to spread from its right of way.
Nor can the verdict and judgment be sustained under C. S., sec. 8346, for while this section clearly applies to railway companies operating their roads in the vicinity of both timbered lands and prairie lands raising grass or grain, the statute contains no provision making the spread of fire from the right of way to such adjoining lands prima, facie evidence of negligence, but makes such companies guilty of a misdemeanor in the event they permit fire to spread from their rights of way to such adjoining lands. The use of the word “permit” presupposes that before one can permit a thing to be done he must have some knowledge that it is about to be done. (Stuart v. State (Tex. Cr.), 60 S. W. 554; Gray v. Stienes, 69 Iowa, 124, 28 N. W. 475; Wilson v. State, 19 Ind. App. 389, 46 N. E. 1050; State v. Robinson, 55 Minn. 169, 56 N. W. 594; Ball v. Campbell, 6 Ida. 754, 59 Pac. 559.)
In the latter case this court said: “Permission implies leave, license, consent. How, then, could the judges of election be said to permit acts of which it does not appear they have any knowledge?”
That respondent was familiar with the foregoing rule and the necessary limitation which its application would make upon the scope of sec. 8346, supra, is apparent from the,, nature of Ms allegation that appellant negligently permitted the fire to spread from its right of way to respondent’s lands. Since, as observed in the majority opinion, the only evidence of negligence was the accumulation of combustible material upon the right of way, and since sec. 2948 has no application to the facts of this ease, the trial court’s instructions to the jury to the contrary were erroneous.
For the foregoing reasons I think the judgment should be reversed.