Opinion of the Court, per GROVER, J. appellant as appurtenant to the other land demised; that easements or servitudes only can so pass; it being a maxim of the common law that land cannot be appurtenant to other land. But it is equally well settled that the intention of the parties, as ascertained from the language used in the instru ment, is to govern their rights; and that, in construing every written instrument, it is proper to look at all the surrounding circumstances, the pre-existing relation between the parties; and then to see what they mean when they speak. (Blossom v. Griffin, 3 Kernan, 569.) Applying this rule to the present case, we find that at the time the respondent gave the lease to the appellant, it had acquired the right to use the strip as a street along side of its passenger depot, and grounds connected therewith, or to its damages if deprived thereof. That such use was convenient and advantageous thereto; that, deprived of such use, the depot and grounds would be of less value for railroad purposes; that the interest in the strip had been acquired for this purpose, and, in case the New York Central Company paved and opened it as a street, was of no value to the respondent for any other purpose. Under these circumstances the respondent leased its railroad, running from Buffalo to Corning, to the appellant. I think this not only included the railroad track and depots, but all land acquired for use in operating the road, the use of which was advantageous and beneficial in connection therewith; the being deprived of which would render the use of the road or any part of it less convenient and valuable. There is nothing in the residue of the description restricting this general language by the application of the maxim, that the expression of one excludes the other. It is insisted by the respondent that the use of this strip as a street, or otherwise, is not necessary for the use of the railroad. This is true, in the sense of being absolutely necessary, because the road has been, and still is, operated without it. But in the sense in which the word is construed in taking land for the use of roads, under the statute, against the will of the owner, it is necessary, because it appears that the road can be operated 49 420 115 584 115 585 49 420 Statement of case. more conveniently and beneficially with than without such use. It was condemned in behalf of the New York Central Company for the reason that its use by that company was more essential to it and the public than to the present parties. The New York Central Company was compelled to pay not only the value of the land taken, but the damages caused thereby to the other lands of the owner. This, in the present case, was the injury to the depot, etc., by being deprived of the use of this strip. It is the lessee and not the lessor that suffers this loss during the term. Upon principles of equity, as well as upon the true construction of the lease, I think the referee and Special Term were right in holding that the appellant was entitled to the use of the money during the term of its lease, and that the General Term erred in reversing the order of the former. The order of the General Term must be reversed, and that of the Special Term affirmed. All concur. Ordered accordingly. 118 229 49.420 140 319 49 420 143 189 49 4201 160 624 630 j 160 ALFRED WEBB, Respondent, v. THE ROME, WATERTOWN AND He who by his negligence or misconduct creates or suffers a fire upon his A fire arising from negligence is not a fire “accidentally begun," within the meaning of the act of Anne (6 Anne, chap. 31, § 67), as amended by the act of George III (14 George III, chap. 78, § 76), providing for exemption of liability for fires accidentally begun. At a time of continued and extreme drouth, while a strong wind was blow- . ing from the land of the defendant toward the adjoining woodland of the plaintiff, coals were negligently dropped from one of defendant's engines, which set fire to a tie; the fire was communicated to an accumulation of weeds and grass and rubbish which defendant had suffered to gather by the side of its track; thence it spread to the fence and on to plaintiff's woodland, burning and destroying his growing forest trees, etc. Statement of case. In an action for the damages,-Held, that the questions as to whether defendant was negligent in the use of its property, and as to whether the injury was a probable consequence of the negligent acts and omissions, were properly submitted to the jury, and that the evidence was sufficient to sustain a verdict for plaintiff. Also, held, that the question of negligence did not consist merely in suffering the coals to drop from the engine; but that that, together with the dryness of the atmosphere and earth, the strength and direction of the wind, the permitted accumulation of weeds, grass and rubbish, were all constituents of the act, and went together to make it negligent. (The cases of Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210, and Penn. R. R. Co. v. Kerr, 62 Penn., 353, distinguished and explained.) Upon the issue of negligence in dropping the coals,-Held, that testimony as to the presence of coals on the track at the time of the fire, at the place of the fire, at other times not remote therefrom, and from time to time immediately after the passage of the engine which dropped the coals occasioning the injury, was pertinent and proper. When there is a long series of uniform decisions, asserting the same principle and reaching the same conclusion upon like facts, the fact that a point involved therein has not been in all cases raised by counsel or started by the court, is strong support to the conclusion that the point has no foundation. (Submitted May 3, 1872; decided May 21, 1872.) APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 3 Lans., 453.) The action was brought to recover damages for injuries to plaintiff's woodland, alleged to have been occasioned by defendant's negligence. Plaintiff was the owner of a farm in the town of Ellisburgh, Jefferson county, upon which was about six acres of woodland, adjoining defendant's road. On the 27th of August, 1867, in a time of extreme drouth, one of the defendant's locomotives in passing along its road, opposite this wood lot, dropped live coals upon the track The evidence tended to show that the occasion of this was the defective construction of the apparatus upon the engine for retaining the coal, which permitted the coal to escape. These live coals set fire to a tie on the track, from thence the fire was communicated to an old tie at the side of the track and Statement of case. from thence to an accumulation of weeds and grass which had been cut down by the side of the track and permitted to lay there, and to other rubbish on defendant's land, all of which in consequence of the drouth had become exceedingly dry and combustible. By this the fire was conducted to the fence, and thence upon plaintiff's land, burning the trees and soil, and doing the damage complained of. At the time the coals were dropped, the wind was blowing strongly toward plaintiff's wood lot. Upon the trial the court allowed evidence on behalf of plaintiff, under objection, that defendant's engine for a month or two before the fire had dropped quantities of live coal in the locality of the fire; that there were live coals upon the track at other places at the time of the fire; and that coal at other times had dropped from the engine in question. Defendant's counsel moved for a nonsuit upon the ground. that no negligence on the part of defendant had been shown, and that the damages were too remote, which motion was denied. The jury found a verdict for plaintiff for $715. The case is reported below in 3 Lansing, 453. Edmund B. Wynne for the appellant. Plaintiff's loss was not the direct and immediate result of defendant's act, and the latter is not liable. (Bacon's Max., Reg. 1, vol. 3, p. 223; Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210; Penn. R. R. Co. v. Kerr, 62 Penn., 353.) Points which pass sub silentio are not to be regarded as adjudged. (People v. Corning, 2 Com., 15; Freeland v. McCulloch, 1 Duer, 414; Johnston v. Kniffin, 2 J., 36.) The fire was accidental, within 6 Anne, chap. 31, 67, as amended 14 George III, chap. 781, § 76. That is a part of the common law and excuses defendant from liability. (Lansing v. Stone, 37 Barb., 17; 1 Black Com., 431.) James F. Starbuck for the respondent. Where running in a place of peculiar exposure to fire, extra diligence is required of a railroad. (Fero v. B. and S. L. R. R. Co., 22 N. Y., Opinion of the Court, per FOLGER, J. 209; Phillips v. R. W. and O. R. R. Co., Gen. Term, fourth department.) The evidence to the dropping of coals was proper. (Sheldon v. H. R. R. Co., 14 N. Y., 218; Hinds v. Barton, 25 N. Y., 544; Field v. N. Y. C. R. R. Co., 32 N. Y., 339.) The evidence of negligence was sufficient to go to the jury and their finding is conclusive. (Rood v. N. Y. and Erie R. R. Co., 18 Barb., 80; Fero v. B. and S. L. R. R. Co., 22 N. Y., 209; Sheldon v. H. R. R. R. Co., 14 id., 218; Hinds v. Barton et al., 26 id., 644; Field v. N. Y. C. R. R. Co., 32 id., 339.) Where one carelessly kindles a fire upon his own premises, which necessarily communicates to and burns another's property, he is liable. (18 Barb., 80; 3 Kent's Com., 436, note a ; 4 id., 18, 83; Fielter v. Phippard, 63 Eng. C. L. R., 346; 11 Ad. & Ellis [N. S.], 347; Clarke v. Foote, 8 J. R., 421; 3 Kent's Com., 436, note a; 4 id., 81, 83; Barnard v. Poor, 21 Pick., 378; Hart v. W. R. Co., 13 Metc., 99; Piggott v. E. C. R. Co., 54 Eng. Com. L. R., 228; Cook v. C. T. Co., 1 Den., 91; Vaughn v. Menlove, 32 Eng. Com. L. R., 208; 3 Bingham N. C., 468; Simons v. Monier, 29 Barb., 421; Field v. N. Y. C. R. R. Co., 32 N. Y., 339.) The statute 6 Anne and 14 George III were never in force in the colony of New York and did not become part of our common law. (1 Black. Com., 101; 1 Jones & Ves. Stats., chap. 35, 281.) If retained, they do not extend to fires occasioned by negligence. (63 Eng. Com. L. R., 346, 347; Vaughn v. Taff Vale Railway, 3 Hurlstone & Norman's Rep., 742.) FOLGER, J. I think that the question whether the defendant was negligent in kindling the fire, was properly left to the jury to decide. It is true that employees of the defendant who were called as witnesses, did testify with more or less positiveness and particularity, that the engines of the defendant, and the one engine especially complained of, were fitted with all the best appliances in known practical use for the prevention of the escape of fire; and that the engines and this engine and these appliances were in good order at the time of the fire. On cross-examination however, most if not all |