Majority
p. 477The People of the State of New York, Respondent, v. The Long Island Railroad Company, Appellant. Second Department, May 1, 1908.
Headnote
Forest, Fish. and. Game Law—section 228 construed—railroad — removal of inflammable material.The provisions of section 228 of the Forest., Fish and Game Law, requiring every railroad company on such part of its road as passes through forest lands to cut and remove ail grass, brush and other inflammable materials from its right of way, applies to all forest lands in the State, within as well as outside the forest preserve.
Hookeb, J., dissented.
Appeal by the defendant, The Long Island Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 29th day of November, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, overruling the defendant’s demurrer to the complaint in an action brought to recover penalties in consequence of defendant’s alleged violation of various provisions of section 228 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1904, chap. 590).
James W. Treadwell [Joseph F. Keany with him on the brief], for the appellant.
Charles M. Stafford, for the respondent.
Plaintiff alleges that the defendant is a domestic corporation, and 'that its line of railroad passes through forest lands and lands subject to fires in the town of Smitlitown, Suffolk county, N. Y. Six causes of action are alleged, each of which is based upon an alleged violation of a separate clause of that section of the statute. The defendant’s demurrer is to each cause of action upon the grounds, among others, that the complaint does not state facts sufficient to constitute a cause of action, and that it appears upon the face of the complaint that the plaintiff has not the legal capacity to sue. It claims that the lands through which its road passes in the county of
p. 478
Suffolk are not within the jurisdiction of the Forest, Fish and Game Commissioner; and this presents the only real question involved, for it is conceded that this forms no part of the forest preserve. The question is whether the regulation in section 228 has reference to any forest lands not contained within the forest .preserve. It seems to me that it was the obvious intention of the Legislature to include within its provision all forest lands within as well as outside the forest preserve. A forest is defined as being “ A tract of land covered with trees; a wood, usually one of considerable extent; a tract of woodland with or without inclosed intervals of open and uncultivated ground.”[1] Chapter 94 of the Laws of 1901 provides for the appointment of a Forest, Fish and Game Commissioner, who[2] shall have the care, control, and supervision of the forest preserve and make rules for the use,-care and administration thereof, and also make rules for the prevention of forest fires, and cause the same to be posted in all proper places throughout the State, and that he may from time to time appoint a fire warden in every town having lands which are a part of the forest preserve, and “ in every other town the supervisor shall be fire warden by virtue of his office. If the supervisor be absent when fire occurs, or fails to act, any justice of the peace in the town may act as fire warden.” If in a town situated in a county containing lands of the forest preserve the Commissioner is unable to find a suitable person who will accept the position of fire warden, then the supervisor of that town shall act as fire warden and discharge all the duties devolving on that office by law, and shall promptly make to the chief fire warden a report of each forest fire that occurs in his town. (Forest, Fish & Game Law, § 225, as amd. by Laws of 1904, chap. 590, § 3.) This section relates to the entire State. In towns having lands of the forest preserve the Commissioner may appoint the fire warden, and in other towns of the State the supervisor thereof shall be the fire warden. Section 228 of the act (as amd. supra) under which this action is brought provides, among other things, that “ Every railroad company shall on such part of its -road as passes through forest lands or lands subject
* See Century Dict.— [Rep.
† † See Laws of 1901, chap. 94; Laws of 1900, chap. 20, §§ 220, 225, as amd. hy Laws of 1908, chap. 442, and Laws of 1904, chap. 590.— [Rep.
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to fires from any cause, cut and remove from its right of way along such lands at least twice a year, all grass, brush and other inflammable materials; ” then follow regulations pertaining to forest lands included, as well as not included, in the forest preserve. The Legislature intended to make these regulations applicable to forest lands wherever situated in this State, and if its provisions have been violated by the defendant as alleged, the cause of action is properly pleaded.
The interlocutory judgment must be affirmed, with costs.
Woodwaed, Jenks and Gaykos, JJ., concurred; Hookes, J., dissented.
Interlocutory judgment affirmed, with costs.