has been held, moreover, that a fire designedly lighted by the defendant or by his orders, on his own estate, and which afterwards spreads, and causes damage to the plaintiff, is not a fire which "accidentally begins" within the meaning of the statute; so that if a person lights, or causes his servants to light, fires on his land, for the purpose of burning weeds and rubbish, and the fire spreads to and destroys the hedges and woods or cornfields of the adjoining landed proprietor, the lighter of the fire will be responsible for the damage(i). But a fire may be knowingly and designedly lighted in the first instance, and yet may fairly be said to "accidentally begin" the moment that, through some sudden and unexpected wind, the fire spreads, or sparks and fragments of fire are blown into the air, and get beyond the control of the party who has lighted and watched the fire (ante, p. 303). 355 Fire spreading from blast-furnaces and steam-engines.-Wherever it is practicable to adopt precautions that will render damage by fire from a furnace "next to impossible," a failure to adopt those precautions will be negligence. Where a spark of fire from the chimney of a locomotive engine on a railroad fell on the thatch of a cart-lodge, and set it on fire, and the fire communicated to several other farm-buildings, and totally destroyed them, it was held that the very occurrence of the disaster was, primâ facie, proof of negligence on the part of the company and their servants having the management of the engine, rendering it incumbent on them to show that every possible precaution had been taken to prevent the escape of sparks(j). 356 Fires spreading from railways to the adjoining property.-If railway companies allow quantities of long dead grass, or any other combustible material, dangerously to accumulate along their railway, and the combustible matter is ignited from lighted coals or sparks escaping from their locomotive engines, and the fire spreads from the railway to the adjoining coppices and fires them, the railway company will be responsible for the damage done, for such a fire is not a fire which ac (1)Filliter v. Phippard; Tubervil v. Stamp, supra. In this country, in the absence of any statutory rule to the contrary, the liability of the owner of land in the case mentioned in the text depends wholly upon the question of negligence. If the fire was negligently set or negligently kept the owner will be liable, but otherwise if he was guilty of no negligence. Higgins v. Dewey, 107 Mass. 494. Stuart v. Hawley, 22 Barb. (N. Y.) 619. Hanlon v. Ingram, 3 Clarke (Iowa), 81 ; id., 1 Clarke (Iowa), 108. Clarke v. Foot, 8 Johns. 421. Bush v. Brainerd, 1 Cow. 78. Bailey v. Mayor, etc., of New York, 3 Hill, 531. Gardner v. Heartt, 1 Denio, 466. In Connecticut it is provided by statute that "every person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all the damages done by such fire." R. S. tit. 1, § 277. (j) Piggott v. Eastern Co. Rail. Co., 3 C. B. 229. Aldridge v. Gt. West. Rail. Co., 3 M. & Gr. 515. Freemantle v. Lond. & North-West. Rail. Co., 10 C. B., N. S. 89; 31 Law J., C. P. 12; 2 F. & F. 337. Huids v. Barton, 25 N. Y. 544. Fero v. Buffalo & State Line R. R. Co., 22 N. Y. 209. AD. VOL. I.--20 . cidentally begins on their estate, but is a fire caused by their negligence in not keeping the railway free from combustible materials likely to be ignited by their furnaces, and to cause damage to their neighbors. And they will be liable, although they could not reasonably anticipate that such consequences would ensue from their negligence(k). They may be expressly authorized by statute to use locomotive furnaces of a dangerous character, but no statute can exempt them from the consequences of negligence in the management of their railways, or the construction of their fire-boxes, chimneys or furnaces, (*) Smith v. Lond. & South-West. Rail., L. R., 5 C. P. 98; 6 ib. 14. Flynn v. San Francisco & San Jose R. R. Co., 40 Cal. 14. In the following cases it has been held, in an action to recover damages for property destroyed by a fire caused by sparks from the engine used by a railway company, and communicated to the lands of an adjoining owner by means of dry grass, weeds, and bushes allowed to accumulate along the track, that the question whether the company were guilty of negligence in allowing combustible matter to accumulate upon their land, was properly left to the jury. Kellogg v. Chicago & Northwestern R. R. Co., 26 Wis. 223. Ohio & Mississippi R. R. Co. v. Shauefelt, 47 Ill. 497. Illinois Central R. R. Co. v. Nunn, 51 id. 78. Illinois Central R. R. Co. v. Frazier, 47 Ill. 505. Bass v. Chicago, Burlington & Quincy R. R. Co., 28 Ill. 9. Illinois Central R. R. Co. v. Mills, 42 Ill. 407. Webb v. Rome, Watertown & Ogdensburgh R. R. Co., 49 N. Y. 420. Kesee v. Chicago and Northwestern R. R. Co., 30 Iowa, 78. In Illinois and Iowa it has been held, in a number of cases, that an owner of land adjoining a railroad track is as much bound in law to keep his land free from an accumulation of dry grass and weeds as railroad companies are; and that, if a fire is ignited on the track, and is communicated to the fields adjoining, the negligence of the owner will be held to have so far contributed to the loss as to prevent a recovery for the injuries sustained, unless it be shown that the negligence of the company was greater than that of the owner. Chicago & Northwestern R. R. Co. v. Simonson, 54 Ill. 504. Ohio & Mississippi R. R. Co. v. Shauefelt, 47 Ill. 497. Illinois Central R. R. Co. v. Mills, 42 Ill. 407. Kesee v. Chicago & Northwestern R. R. Co., 30 Iowa, 78. But it has been held in California and Wisconsin that a failure to remove dry grass and stubble from land adjoining a railroad track is not an omission of any duty which the law imposes; and that it is not such contributory negligence on the part of the owner of the adjoining land as to impair or defeat a recovery for damages arising from a fire communicated to such land by weeds negligently allowed to accumulate along the line of the railroad. Flynn v. San Francisco and San Jose R. R. Co., 40 Cal. 14. Kellogg v. Chicago & Northwestern R. R. Co., 26 Wis. 223. And see Martin v. Western Union R. R. Co., 23 Wis. 437; Hewey . Nourse, 54 Me. 256; Field v. N. Y. Central R. R. Co., 32 N. Y. 339; Bachelder v. Heagan, 18 Me. 32; Barnard v. Poor, 21 Pick. 378; Fero v. Buffalo and State Line R. R. Co., 22 N. Y. 209; Hart v. Western R. R. Co., 13 Metc. 99; Ingersoll v. Stockbridge and Pittsfield R. R. Co., 8 Allen, 438; Perley v. Eastern R. R. Co., 98 Mass. 414; Hooksett v. Concord R. R. Co., 38 N. H. 242; McCready v. R. R. Co., 2 Strobh. (Law,) 356; Cleveland v. Grand Trunk R. R. Co., 42 Vt. 449. It has also been held that the fact that natural agencies, such as high winds or drought, contributed to cause the injury, or that the property destroyed was at a distance from the place where the fire originated, does not affect the liability of the company. Kellogg v. Chicago and Northwestern R. R. Co., 26 Wis. 223. See Perley v. Eastern R. R. Co., 98 Mass. 414; Hart v. Western R. R. Co., 13 Metc. 99; Ingersoll v. Stockbridge and Pittsfield R. R. Co., 8 Allen, 438; Webb v. Rome, Watertown and Ogdensburgh R. R. Co., 49 N. Y. 420. But see Ryan v. N. Y. Central R. R. Co., 35 N. Y. 210; Pennsylvania R. R. Co. v. Kerr, 62 Penn. St 353; Toledo, Peoria and Warsaw R. R. Co. v. Pindar, 53 Ill. 447. It is provided by the general statutes of Massachusetts (ch. 63, § 101), that every railroad corporation shall be responsible in damages to any person or corporation whose buildings or other property may be injured by fire communicated by its locomotive engines, and that the railroad corporation shall have an insurable interest in the property along the route, for which it may be held so responsible, and may procure insurance thereon in its behalf. whereby coals of fire are thrown on the adjoining property. If they neglect to avail themselves of all such contrivances as are in known practical use to prevent the emission of sparks from their engines, they will be responsible for such neglect(). And if they run locomotive engines without statutable authority, in that case they are responsible for any damage caused by such engines in setting fire to adjoining property or otherwise, although they have not been guily of negligence(m). 357 Fires occasioned by the negligence of servants.-The 12 Geo. 3, c. 73, s. 35, imposes penalties upon servants who, through negligence or carelessness, fire any houses or buildings; but this enactment does not exempt the master from the responsibility for the negligent acts of the servant whilst carrying into execution the master's orders, and doing something which the master employed him to do(n). If the work the servant is employed to execute does not require the use of fire, but the servant, nevertheless, kindles a fire for his own purposes, to cook his dinner or light his pipe, and carelessly throws burning material amongst combustibles, and destroys valuable property, the master is 8 (1) Freemantle v. Lond. & North-West. Rail. Co., ut sup. Vaughan v. Taff Vale Rail. Co., H. & N. 743; 28 Law J., Exch. 41; 29 Law J., Exch. 247; 5 H. & N. 679. Jackson v. Chicago & Northwestern R. R. Co., 31 Iowa, 176. It has been held in a long line of cases in this country, that the mere fact that a fire was occasioned by sparks from a railway locomotive does not make a prima facie case against the company, as the emission of sparks from a locomotive is not in itself illegal, and negligence cannot be inferred from the mere fact of causing fire, as sparks and coals may escape notwithstanding the adoption of all the safeguards which modern improvement has suggested. Gandy v. Chicago and Northwestern R. R. Co., 30 Iowa, 420. Frankfort, etc., Turnpike Co. v. Philadelphia, etc., R. R. Co., 54 Penn. St. 345. Sheldon v. Hudson River R. R. Co., 14 N. Y. 218, 224. Burroughs v. Housatonic R. R. Co., 15 Conn 124. Fero v. Buffalo and State Line R. R. Co., 22 N. Y. 209. Rood v. N. Y. and Erie R. R. Co., 18 Barb. (N. Y.) 80. Macon and Western R. R. Co. v. McConnell, 27 Ga. 481. Smith v. Hannibal and St. Joseph R. R Co., 37 Mo. 287. McCready v. South Carolina R. R. Co., 2 Strobh. 356. But see Hull v. Sacramento Valley R. R. Co., 14 Cal. 387; Illinois Central R. R. Co. v. Mills, 42 Ill. 407. It seems to be conceded by the authorities that the loss of property adjacent to a railroad from the sparks, is, in the absence of negligence on the part of the company, or statutory rule to the contrary, damnum absque injuria. But it has also been held that the absence of a spark-arrester, the failure to use the best, the employment of a drunken engineer, the use, at the time, of an excessive amount of steam, an extraordinary heavy train, an unlawful rate of speed, the defect or want of repair in the engine, the stopping of the engine, or stirring the fire in a place of peculiar peril, the repeated and unusual dropping of coals, or excessive and continual emission of sparks, etc., are facts tending to establish negligence. Gandy v. Chicago and Northwestern R. R. Co., 30 Iowa, 420 Jackson v. Chicago and Northwestern R. R. Co., 31 Iowa, 176. Webb v. Rome, Watertown and Ogdensburgh R. R. Co., 49 N. Y. 420, 424. Bedell v. Long Island R. R. Co., 44 N. Y. 367. And when it is in evidence that engines properly constructed and in good order will not drop coals upon the track, the dropping of coals from the engine upon the track is, of itself, evidence of negligence sufficient to charge the company. Field v. N. Y. Central R. R. Co., 32 N. Y. 339. (m) Jones v. Festiniog Rail. Co., L. R., 3 Q. B. 733. (n) Vaughan v. Menlove, 3 B. N. C. 468. not responsible for the unauthorized act of his servant(o). Where a maid-servant, in order to clear a chimney of soot, set fire to the soot, with a quantity of furze, and burnt the house down, it was held that the master was not responsible for the damage, as it was no part of the servant's business to clean the chimney, or to use fire for the purpose(p). Amongst the Romans, where fire was little used, and candles were unknown, it was considered that damage from fire seldom occurred without imprudence or negligence, and those through whose neglect, however slight, a fire occurred, were held answerable for the damage done by it(g). 358 Injuries from gunpowder and explosive substances-Explosions of gas. -Whoever introduces gunpowder or explosive materials into a building is responsible for damage occasioned by the introduction of such dangerous substances. If a person mixes things together, which alone are perfectly innocent, but which are liable to explode on coming into contact, he is responsible for the consequences; and if an explosion ensues he must make good the damage(r). Every tenant of a house (0) Williams v. Jones, 33 Law J., Exch. 297. (p) McKenzie v. McLeod, 10 Bing. 385; 3 Law J., N. S. C. P. 75. It was held in North Car olina that where slaves, in a dry time, in working new ground, set fire to a log-heap within a few feet of the fence and a dead pine tree, and there was an abundance of dry stuff between the log-pile and the fence, the master was responsible for the injury occasioned by the spread. ing of the fire, although it was calm in the morning when the fire was set. Garrett v. Freenan, 5 Jones' Law, 78. The law of waste has been modified in the United States both as to the remedy and the law itself; and the action of waste or estrepment has in a great degree been superseded by an action on the case in the nature of waste. See 4 Kent's Comm. 81. In New York, prior to the Code, the remedy for wrongs in the nature of waste was by a special statutory action, technically known as the action of waste. See 2 R. S. 334, ss. 1-10; 1 R. S. 750, s. 8. But by the adoption of the Code of Procedure the action of waste was abolished, and it was provided that "wrongs heretofore remediable by action of waste are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises." N. Y. Code, s. 450. It was also provided that "the provisions of the Revised Statutes relating to the action of waste shall apply to an action for waste brought under this act, without regard to the form of the action, so far as the same can be so applied. Id. s. 451. For the history of the statutes of California in regard to actions of waste and their construetion and effect, see Parrott v. Barney, Deady, 404. In Massachusetts the statute of Gloucester (6 Edw. 1, ch. 5) was adopted, but modified in respect to tenants in dower. Sackett v. Sackett, 8 Pick. 309. Under the Massachusetts statute of 1783, ch. 40, s. 3, the tenant in dower, committing waste, forfeits the place wasted and single damages only. Padelford v. Padelford, 7 Pick. 152. So in Georgia, the statute of Gloucester has not been adopted in respect to tenants in dower, and the remedy is by action on the case in the nature of waste, for actual damages, or by injunction. Parker v. Chambliss, 12 Ga. 235. Under the statutes of Maine, for waste committed or suffered by a tenant for dower or for life, the reversioner may elect between an action of waste to recover the place wasted, with damages, and an action on the case in the nature of waste, to recover damages only; but he cannot have both remedies. Stetson v. Day, 51 Maine, 434. (q) Domat, liv. 2, tit. 8, s. 4. (r) Tindal, C.J., in Vaughan v. Menlove, 4 Sc. 252. is responsible for not taking care that the stop-cocks for regulating the supply of gas to a house are properly turned; and if these stop-cocks are negligently left open by the tenant or servants when the gas-lights are not burning, and an explosion ensues, and injures the house, the tenant will be responsible for the injury. But if a thief enters the house in the absence of the tenant, and cuts and carries away a gaspipe without the knowledge of the tenant, or against his will, the latter is not then responsible for the resulting damage. When the entry of gas into a house is under the control of the occupants of the house, the gas company supplying the gas is not bound, on receiving notice. that no more gas will be required, to stop the supply from the outside by putting on an outer stop-cock, or cutting off the communication between the gas-pipes in the interior of the house and the main in the street(s). In supplying gas to a house, a gas company is bound to use every reasonable precaution to prevent injury during the operation of "tapping the main"(t). SECTION II. REMEDIES AT COMMON LAW FOR INJURIES TO LANDS FROM WASTE, 359 The writ of prohibition for waste was anciently a common law remedy, grantable only at the instance of the person injured, but by the statute of Westminster the second (13 Ed. 1, c. 14), this writ is taken away, and a writ of summons substituted in its place; " and although it is said by Lord Coke, when treating of prohibition at the common law, that it may be used at this day, those words, if true at all, can only apply to that very ineffectual writ directed to the sheriff, empowering him to take the posse comitatus to prevent the commission of intended waste"(u). 360 Actions for waste.-The real action for waste, in which the land or tenement itself was recovered, with thrice as much as the waste was taxed at, has been abolished by 3 & 4 Wm. 4, c. 27, s. 36, and the remedy at common law is now by the ordinary action on the case, in (s) Holden v. Liv. Gas Co., 3 C. B. 14; 15 Law J., C. P. 304. |