CHAPTER LXXVI.

ACTION FOR INJURY TO PLAINTIFF'S PROPERTY FROM FIRE CAUSED BY NEGLIGENCE ON ANOTHER'S PREMISES.

1. Rule at common law as to fire produced by negligence.

In the 11 Will. 3, a plaintiff declared that secundum consuetud. d'regni Angliæ, every housekeeper ought always safely to keep his fire, lest in default of the safekeeping of the fire of such housekeeper or of any of his servants or lodgers any damage should happen to any person &c.; and that the defendant was a housekeeper in Chancery lane and took a lodger who so negligently kept his fire that the plaintiff's goods were burnt and spoilt, &c. There was a verdict for the plaintiff, but judgment was arrested (the reporter states) for the strangeness and insufficiency of the declaration. Allen v. Stephenson, 1 Lutw. 36.

Nevertheless it is clear that an action on the case founded upon the common custom of the realm would lie against a person on whose premises fire was kept so negligently that it spread to, and destroyed or injured, his neighbour's property. 1 Man. Gr. & Scott 587, note. In the 9 Will. 3, a plaintiff possessed of a close of heath declared against a defendant possessed of an adjoining close, that the defendant tam improvide et negligenter custodivit ignem suum, that it consumed the plaintiff's heath. On a motion in arrest of judgment, it was argued that a fire in the field cannot be called ignis suus, for a man has no power over a fire in the field as he has over a fire in his house; but judgment was given for the plaintiff; the court holding that a man ought not to let fire in his field any more than fire in his house, cause, from his negligence, damage to his neighbour. Turberville v. Stamp, 1 Ld. Raym. 264, Com. 32, 1 Salk. 13, Carth. 425, Skinu. 681, 12 Mod. 151, Holt 9, Comb. 459, 1 Vin. 216, pl. 9, 2 Id. pl. 15, 5 Id. 404, pl. 11.

2. Effect of stat. 6 Ann, c. 31. If fire be produced by negligence liability remains as it was before that statute.

The stat. 6 Ann, c. 31, contemplates the probability of fires in cities and towns arising from three causes, the want of water, the imperfection of party walls and the negligence of serThe 3rd section was directed against the latter cause;

vants.

it imposes on the servant by whose negligence the fire may have been occasioned a fine of £100, to be distributed among the sufferers, or imprisonment for 18 months in case of nonpayment. The 6th section enacts that no action shall be maintained against any person in whose house or chamber any fire shall accidentally begin, nor shall any recompense be made by such person for any damage suffered or occasioned thereby. Both provisions were re-enacted by stat. 12 Geo. 3, c. 73, and stat. 14 Geo. 3, c. 78; the latter ($ 86) adding to the words "house or chamber," the words "stable, barn or other building;" and also the words "or on whose estate." This in England is viewed as a general law. 15 M. & W. 244. doubt has arisen from the mode in which the statute of Ann is discussed by Sir William Blackstone. 1 Bl. Com. 431. He has drawn from it a conclusion which is in some degree sanctioned by Lord Lyndhurst, 1 Phil. C. R. 306. But it is a conclusion which the statute does not sustain; the clause in it respecting accidental fires, it is settled, does not apply to such as are produced by negligence. Filliter v. Phippard, 11 Adol. & El. N. S. 347, 63 Eng. Com. Law Rep.

3. Decisions which since the stat. 6 Ann, c. 31, have been made upon the common law principle.

Notwithstanding what is said of the statute of 6 Ann, c. 31, in 1 Bl. Com. 431, 3 Wood. 203, and 1 Bac. Abr. tit. Action on the case (F), the right to maintain an action upon the principle of Turberville v. Stamp remains unaffected by that statute. A man may burn his fallow, or set fire on his land for any lawful purpose, but if from gross negligence or want of ordinary care on the part of him or his servants, the fire extend to a neighbour's woodland, (Clark v. Foot, 8 Johns. 422) or extend to a different part of his own land, on which another's wood is lying, (Jordan v. Wyatt, 4 Grat. 152) and burn the wood, in either case an action will lie for the injury thus done to another's property. Barnard &c. v. Poor, 21 Pick. 378.

In England the common law rule has been acted on in a case of injury from a fire which was not made directly by the defendant or any servant of his, but sprung from his negligence. The case was for so negligently constructing a hayrick on the extremity of the defendant's land that in consequence of its spontaneous ignition, his neighbour's house had been burnt down. The jury were instructed that they were to consider whether the fire had been occasioned by gross negligence on the defendant's part; that he was bound to proceed with such

reasonable caution as a prudent man would have exercised under such circumstances. A verdict was found for the plaintiff; and a motion for a new trial was overruled. Tindal, C. J. said, "though the defendant did not himself light the fire, yet mediately he is as much the cause of it as if he had himself put a candle to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked." The C. J. put the case of a chemist making experiments, simply innocent, but when combined liable to ignite; if he leaves them together and injury is thereby occasioned to the property of his neighbour, can" (he said) "any one doubt that an action on the case would lie ?" Vaughan v. Menlove, 3 Bingh. N. C. 468, 32 Eng. Com. Law Rep. 208.

4. Of railroads and steamboats. How far there is liability for injury from fire caused by sparks from their engines.

The Camden and Amboy railroad being parallel and near to the Bordentown and South Amboy turnpike, and crossing the turnpike in six different places, the turnpike company complained that by reason of the defendants' use of their engines, it became dangerous for travellers to pass and repass on the turnpike road, whereby the turnpike company was disturbed in their franchise and in the receipt of their accustomed tolls. The supreme court of New Jersey held, I, that the defendants' charter authorized them to use locomotive engines upon their railway; 2, that such use being authorized by law could not be construed a public nuisance, and could not be the subject of indictment; and 3, that no action would lie against the railroad company for a disturbance of the plaintiffs' franchise, when such disturbance arose from the performance of a lawful act. Bordentown & S. Amboy T. P. Co. v. Camden & Amboy R. R. Co. 2 Harrison 314.

It has sometimes happened that when a locomotive is passing on a railroad, sparks fron the chimney or smoke-pipe have escaped therefrom upon the roof of a building or upon a stack or other property of an adjacent land-owner, and set such property on fire, whereby the same was consumed. In such case it is held that the company is no more liable for an injury arising from a spark from their engine than the owner of a dwelling house is liable for a spark from his house. Burroughs &c. v. Housatonic Railroad Co. 15 Conn. 124. To authorize a recovery against the company for such injury, it must appear that they were guilty of negligence, McCready v. Railroad Co. 2 Strobhart 356; the plaintiff must either shew some carelessness by them or lay facts before the

jury from which it may be inferred. Aldridge v. Great Western Railway Co. 3 Man. & Grang. 514, 42 Eng. Com. Law Rep. 272. There is indeed a case in North Carolina, in which the court while admitting that the company is not liable for the injury if they use all the care to prevent it which the nature of their business allows, held nevertheless, that when the plaintiff shews damage resulting from their act, which act with the exertion of proper care, does not ordinarily produce damage, he makes ont a prima facie case of negligence, which cannot be repelled but by proof of care or of some extraordinary accident which renders care useless. Ellis v. Portsmouth & Roanoke Co. 2 Iredell 138. But in Pennsylvania in an action for the burning of the plaintiffs' woods and fences by sparks from engines alleged to be negligently managed, negligence was considered to be the gist of the action, and there being no proof thereof the plaintiff could not recover. Railroad Co. v. Yeiser, 8 Barr 366.

Injury to property on land caused by fire from a steamboat is on a like footing with injury caused by fire from the engine of a railroad company: the steamboat may be lawfully run on a lake or other water-course; but if owing to negligent and unskilful management on the boat, sparks and cinders from its smoke-pipes or chimneys fall upon the roof of a building on the bank of the water and burn the building, the owners of the boat will be liable. Cook v. Champlain Transp. Co. 1 Denio 91.

CHAPTER LXXVII.

ACTION FOR INJURY IN WITHDRAWING SUPPORT OF PLAINTIFF's SOIL OR HOUSE.

1. General rule that action lies for disturbing the natural state of a neighbour's soil but not for value of a house, unless defendant be guilty of negligence.

In the case of adjoining closes which belong respectively to different persons from the surface to the centre of the earth, the law of England has long settled the degree of lateral support which each may claim from the other. In Com. Dig. tit. Action upon the case for a nuisance (C), the doctrine is recognized as laid down in 2 Roll. Abr. 564, tit. Trespass (I),

pl. 1. According to Roll, if A seized of land erect on his land a new house, part of which is on the confines of his land next adjoining the land of B, if B afterwards digs his land near to the foundation of the house of A, but not touching the land of A, whereby the foundation of the house and the house itself fall into the pit, still no action lies for A against B, because it was A's own fault that he built his house so near to B's land; he could not hinder B from making the best use of B's own land. But it seems that a man who has land next adjoining my land cannot dig his land so near mine that thereby my land shall fall into his pit; and for this if an action were brought, it would lie. 3 Barn. & Adol. 871,

note a.

By this authority it appears that a man in digging upon his own land is to have some regard to his neighbour's line: if he digs so near thereto as to cause loss of or injury to his neighbour's soil, he may be held answerable for the damage which is a direct and necessary consequence of his disturbing the natural state of the soil, but not for the value of a house put upon or near the line by his neighbour; for the latter was in fault in placing the additional artificial weight of his house upon soil which was incapable of supporting it. 3 Barn. & Adol. 871; Thruston v. Hancock &c. 12 Mass. 229. is the general rule where the plaintiff shews no right to recover damages on the ground of the defendant's negligence in not taking reasonable care to prevent the injury. Panton v. Holland, 17 Johns. 92; Callender v. Marsh, 1 Pick. 434; Lasala &c. v. Holbrook, 4 Paige 169; Shrieve v. Stokes, 8 B. Monroe 453.

Such

Lord Tenterden regarded it as settled that the owner of premises adjoining those pulled down must shore up his own in the inside and do everything proper to be done upon them for their preservation. Where that had not been done by the plaintiff, and fair and proper caution was exercised by the defendant, there was a verdict for the latter. Walters &c. v. Pferl, 1 Moo. & Malk. 362; 22 Eng. Com. Law Rep. 334. The opinion of Lord Tenterden was sustained by the court of king's bench in Peyton &c. v. Mayor &c. of London, 9 Barn. & Cress. 725, 17 Eng. Com. Law Rep. 483. In this case the declaration did not allege as a fact that the plaintiffs were entitled to have their house supported by the defendants' house, nor did it, in the court's opinion, contain any allegation from which a title to such support could be inferred as a matter of law.