true view of their effect was to remove the responsibility for fires without any fault of the owner, leaving the rule of liability for fires caused by negligence in the starting or management after started. If there is an absolute liability, the wrong is nuisance; if the basis of the liability is negligence, it should not be classed as a nuisance, but is a pure act of negligence. Fire, like the work of blasting, is dangerous, but being caused by a single negligent act or because it is not properly guarded, the element of wrong is neglect, which is not of such continuous nature as to make the wrong nuisance. The right violated is a right of property, and it matters but little what the wrong may be termed.

§ 705. The Rule of Liability for Negligent Fires Adopted in This Country.-The view generally adopted in this country as to responsibility for fires causing injury to property is that prevailing at common law as modified by act of parliament. By some authority it is denied that the law as changed by these statutes in England became a part of our law. The reason for this contention has merit, because wherever in this country the common law, as modified by statute, has been regarded as common law with us, it is where the statutes had been enacted for a long period before the settlement of this country, that having been the law of that country, it became as to us the common law. The statutes, however, under consideration were not passed until shortly prior to the settlement of this country. The view principally prevailing with us has been that of the common law as modified by statute. Without regard to what is 2 14 George III, c. 78, sec. 86.

3 The question is well considered in McNally v. Colwell, 91 Mich. 527, 30 Am. St. Rep. 494, 52 N. W. 70. See Spaulding v. Chicago

considered to be the common law, the universal opinion in this country has been that there is no responsibility for injury to property from fire except when it has been negligently started, or, after it has been started, care has not been exercised in guarding it.1 Thus negligence may consist of the omission of due care before the fire is started, or at the time of starting it, or after it has gotten under way. The exercise of due care requires that one who uses the agency of fire for any purpose shall provide suitable and safe means in which it may be used, and by which it may be properly controlled. He is held to a knowledge of the effects liable to follow from the use he makes of fire under the known circumstances and those which it is reasonable to presume will arise. If these effects are dangerous to the property of others, he is bound at his peril to prevent them, and, failing to do so, is liable for the damage resulting.

§ 706. Special Instances of Care and Neglect—Acts Previous to Beginning of Fire.-Applying the general principles last stated, which are but the ordinary rules of negligence applied to the keeping of fires, the following specific rules or instances have been determined by the courts of this country: First, as to acts previous to the beginning of the fire. The natural

etc. Ry. Co., 30 Wis. 110, 11 Am. Rep. 550; Shearman and Redfield on Negligence, sec. 665.

4 Burroughs v. Housantonic R. R. Co., 15 Conn. 124, 38 Am. Dec. 64; Jackson v. Chicago etc. R. R. Co., 31 Iowa, 176, 7 Am. Rep. 120. See 13 American and English Encyclopedia of Law, page 411, where numerous authorities upon this point are collected in note 2. Under the modern rule, independently of statute, negligence is the gist of all actions and must exist in every case: Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63; Missouri Pacific R. R. Co. v. Platzer, 73 Tex. 117, 15 Am. St. Rep. 771, 11 S. W. 160; Read v. Pennsylvania R. R. Co., 44 N. J. L. 280; Fahn v. Reichart, 8 Wis. 255, 76 Am. Dec. 237; Sweenev v Merrill, 38 Kan. 216, 5 Am. St. Rep. 734, 16 Pac.

5

conditions must be taken into consideration, and care must be exercised proportioned to the direction and strength of the wind. The dryness of the season, and condition of combustible matter within reach of the fire must be considered. In this connection it is a firmly established rule with regard to railroads that allowing inflammable materials to collect upon their tracks or neighboring rights of way is prima facie negligence, rendering them liable for damages flowing from fires started therein by sparks from their locomotives. In this class of preliminary negligent acts belongs the negligent construction of buildings, or such portion of them as come in contact with the fires, and of those appliances, as furnaces, boilers, engines and the like, in which fire is to be placed. Also may be included here the failure to provide suitable means to keep fire within bounds and to fight it when out of bounds. For instance, it has been regarded negligent to so defectively construct a hot-air flue as to permit the discharge of large quantities of sparks upon a neighboring wooden roof. In another case it

5 Jones v. Michigan Central R. R. Co., 59 Mich 437, 26 N. W. 662; Marwin v. Chicago etc. R. R. Co., 79 Wis. 140, 47 N. W. 1123.

6 Webb v. Rome etc. R. R. Co., 49 N. Y. 420, 10 Am. Rep. 389; Fero v. Buffalo etc. R. R. Co., 22 N. Y. 209, 78 Am. Dec. 178; Marvin v. Chicago etc. R. R. Co., 79 Wis. 140, 47 N. W. 1123; Jones v. Michigan Central R. R. Co., 59 Mich. 437, 26 N. W. 662; Chicago etc. R. R. Co. v. Quaintance, 58 Ill. 389.

7 Gulf etc. R. R. Co. v. Benson, 69 Tex. 407, 5 Am. St. Rep. 74, 5 S. W. 822; Kesee v. Chicago etc. R. R. Co., 30 Iowa, 78, 6 Am. Rep. 643; Flynn v. San Francisco etc. R. R. Co., 40 Cal. 14, 6 Am. Rep. 595; Lindsay v. Winona etc. R. R. Co., 29 Minn. 411, 43 Am. Rep. 228; Kellogg v. Chicago etc. R. R. Co., 26 Wis. 228, 7 Am. Rep. 69; Delaware etc. R. R. Co. v. Salmon, 39 N. J. L. 299, 23 Am. Rep. 214; Ohio etc. R. R. Co. v. Shanefelt, 47 Ill. 497, 95 Am. Dec. 504; O'Neill v. New York etc. R. R. Co., 115 N. Y. 579, 22 N. E. 217; Jones v. Michigan Central R. R. Co., 59 Mich. 437, 26 N. W. 662; Aycock v. Raleigh etc. R. R. Co. 89 N. C. 321.

8 Briggs v. New York Central etc. R. R. Co., 72 N. Y. 26.

was said that "while the law does not require absolute scientific perfection in the construction" of flues, chimneys and furnaces, "it does require the exercise of a high degree of care and skill to ascertain, as nearly as may be, the best plan for such structures; and it requires that not only skillful and experienced workmen shall be employed in their construction, but that due skill shall be exercised by such workman in the particular instance." The rule has received numerous applications with regard to the engines, and locomotives of railroads, and they are required to employ such devices for preventing the escape of sparks and burning embers as have been proven to be the most effective for such purpose. Various rules have been formulated to determine what devices shall be deemed due care if employed, the usual statement being that they shall be the most approved devices.10 This would seem the most practical test. A railroad should use such devices as are most efficient, and at the same time are not such as will seriously impair the efficiency of the engines or render the operation of the road impracticable. Such devices are apt to be the ones most approved by the railroads themselves, and such approval is excellent evidence of their efficiency and practicability.

§ 707. Keeping Fire Under Control.-In the next place, one who maintains a fire ought to provide means of keeping it under control, and if it should escape, means of extinguishing it. So, where an owner of a sawmill, in which the surroundings were highly inflammable, failed to provide means for extinguishing the fire if it should break out, the court said: "To operate such a mill without any appliances

9 Gagg v. Vetter, 41 Ind. 228, 13 Am. Rep. 322.

10 Boss v. Chicago etc. R. R. Co., 28 Ill. 9, 81 Am. Dec. 254.

or means at all to extinguish fires is negligence per se."

" 11

§ 708. Negligence Concurrent with Starting Fire.Secondly, the negligence may be concurrent with the starting of the fire, and where the fire is started through negligence, and damage results, an action will lie, even though all means at hand are used to extinguish it and prevent it from spreading. Thus, when a farmer, after lighting his pipe, goes into his barn, lies down upon the hay therein, and goes to sleep, the resulting fire is considered to have sprung from his negligence, and he should be held liable for the damages.12 Again, "where a railroad company, whose right of way, as well as surrounding lands, is composed of one vast bed of turf or peat, intentionally sets fire to such right of way in a season of great drought, it is guilty of positive tort, and not of mere passive negligence, and is liable for all loss resulting to adjoining owners or others to whose land the fire is communicated by an ordinary wind." 13. In such cases the use of care in attempting to control the fire will not relieve the one originally negligent from

11 McNally v. Colwell, 91 Mich. 527, 30 Am. St. Rep. 494, 54 N. W. 70. "Where fires are liable to originate in the engine or boiler rooms of a sawmill, and the construction of the mill is such that the surroundings are inflammable, so that fire is liable to spread rapidly when once ignited, it is incumbent upon the person operating the mill to take care that fire shall not consume it and spread to other property, by keeping on hand, not only persons to watcn the fire and keep it within the furnace, but also some appliances for extinguishing fire in case it should accidentally escape and ignite some part of the building."

12 Lillibridge v. McCann, 117 Mich. 84, 72 Am. St. Rep. 553, 75 N. W. 288; Kuhn v. Jewitt, 32 N. J. Eq. 647; Krippner v. Biehl, 28 Minn. 139, 9 N. W. 671.

13 Louisville etc. R. R. Co. v. Nitsche, 126 Ind. 229, 22 Am. St. Rep. 582, 26 N. E. 51.