Opinion of the Court, per FOLGER, J.

of these witnesses made statements tending to show that there was something in the construction or mode of attaching some of these appliances, which left a chance for the escape of coals of a size which was dangerous. And most if not all of them did concede; that if coals were found of the size, and in the quantity, and with the frequency, and at the places spoken of by other witnesses, it must have been that the engines and this engine of the defendants were not in good order in the apparatus and appliances provided to prevent the escape of fire. These other witnesses were as positive and as particular as were the witnesses for the defendant. It was for the jury to decide where they would put their belief; and to find that the engines were not well provided with the requisite preventive apparatus, or that being so provided it had been suffered to get into bad order, or that they were well provided with sufficient and proper apparatus, well cared for, and in complete order.

The verdict shows that the jury found that the defendant was negligent, either in the lack of provision of proper and sufficient apparatus, or in not well caring for it after it was attached to the engine.

And upon the issue which arose on this question, the testimony as to the presence of coals on the track, at the time of the fire, or at the place of the fire at other time not long therefrom, or at once after the passage of this engine from time to time, was pertinent and proper.

The verdict of the jury rendered upon testimony proper, competent and sufficient, has established that this state of facts existed. At a time of continued and extreme drouth, while a strong wind was blowing from the land of the defendant toward the wood-land of the plaintiff, a fire was negligently kindled by the defendant on its land, which was self-fed with dry and combustible matter, accumulated there in more than ordinary quantity by the direct act and sufferance of the defendant. This fire, fanned and driven by this wind, spread through this matter to the fences of the defendant, and burned them, and on to the wood-land of the plaintiff lying immedi

Opinion of the Court, per FOLGER, J.

ately contiguous to land of the defendant, and there burning and injuring his growing forest trees, did him damage.

The defendant contends that on this state of facts, as a mat ter of law, it is not liable to the plaintiff. This contention is put upon the single ground that the damage suffered by the plaintiff is too remote.

In my judgment, this position of defendant cannot be

maintained.

It certainly is not a novel proposition, that he who by his negligence or misadventure creates or suffers a fire upon his own premises, which burning his property spreads thence on to the immediately adjacent premises of another, and there destroys the property of the latter, is liable to him in an action for the damage which he has suffered.

(See Beaulieu v. Finglam, cited by DENIO, J., in Althorf v. Wolfe, 22 N. Y., 355–366, from the Year Books; Snagg's Case, reported as anonymous, Cro. Eliz., 10, pl. 5; Tuberville v. Stamp, 1 Salk., 13; Pantam v. Isham, id., 19; Clark v. Foot, 8 J. R., 421.) Nor is it one which though once held, has in later days been questioned and discarded. (Filliter v. Phippard 11 Add & Ell. [N. S.], *347; 63 E. C. L. R., 346; Barnard v. Poor, 21 Pick., 378; Field v. N. Y. C. R. R. Co., 32 N. Y., 339; Smith v. L. & S. W. R. W. Co., Law Rep., 5 Com. Pleas, 98.)

"This rule, it was said, was founded on the general custom of the realm; in other words, it was a peculiarity of the common law" (Viscount Canterbury v. Att'y-Gen'l, 1 Phillips, 306), and has its support in the maxim "every man must use his own so as not to hurt another" (1 Salk., 13, supra), and it was applied not only to the case of a fire arising in a house, but to that of one arising on the open land; and not only where the fire was intentionally set and carelessly managed, but where negligently kindled.

At first it was held that the defendant was liable though guiltless of negligence, and that he could defend himself only by showing that the fire was excited by some superior cause which he could not resist nor control. And so firmly SICKELS-VOL. IV.

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fixed was this rule in the common law, that there must needs be a statute to soften its rigor. (6 Anne, chap. 31, § 67, and 14 Geo. III, chap. 78, § 76.)

We have the common-law principle well established and thoroughly recognized and still existing to this extent: that he who negligently sets or negligently manages a fire in his own property, is liable to his immediate neighbor for the damage caused to him by the spread of the fire on to his neighbor's next adjacent property.

It is a principle too firmly fixed, and certainly in cases like the present too reasonable and salutary, to be shaken for light considerations.

It

It is said that in the cases cited above, the point now made by the defendant was not raised; that it passed sub silentio. And citations are made to show that points which pass sub silentio are not to be regarded as having been adjudged. is however, equally as true, that where there has been a long series of uniform decisions, asserting the same principle, and reaching the same conclusion upon facts which are alike, where a point now lately made was as much involved, the fact that the point has not been in any of all these cases raised by counsel or stated by the court, is strong support that it is now made without ground. In each of two cases hereafter noticed, much relied upon by the defendant, LITTLETON's rule is cited with approval from 1 Vernon, 385; "what never was, never ought to be." (See also Vose v. L. & Y. A. W. Co., 2 H. & N., 728, 734.)

Again: It is urged that the statute of Anne, as amended by that of the third George above cited, is a part of the common law of this State; and that thereby it is provided that “no action, suit or process whatever shall be had against any person in whose house, chamber, stable, barn or other building, or on whose estate, any fire shall * accidentally begin, nor shall any recompense be made by such person for any damage thereby, any law, usage or custom to the contrary notwithstanding."

* * *

It is not needed that it be determined whether the claim

Opinion of the Court, per FOLGER, J.

that these statutes are a part of the common law of this State is well founded. It is sufficient to say of them, that they apply only in a case in which the fire did "accidentally begin"; and that it has been held, on grave consideration, that a fire arising from negligence is not one which does accidentally begin, and that the statutes referred to afford no defence to one who negligently sets or manages his fire. (Filliter v. Phippard, supra.) It is also urged that the decision in Ryan v. N. Y. C. R. R. Co. (35 N. Y. 210), followed and approved in Penn. R. R. Co. v. Kerr (62 Penn. St., 353) has announced a rule which conflicts with the cases herein above cited. I do not understand it to be so, or that the decisions in 35 N. Y. and 62 Penn. St., supra, put forth a new rule of law, or one which has not been acted upon and recognized pari passu, with the recognition and growth of the principles upon which most of the cases above cited are based. In Ryan's Case, the opinion of the court was that the action could not be sustained, for the reason that the damage incurred by the plaintiff was not the immediate but the remote result of the negligence of the defendant. It certainly was not a new rule that the damages resulting from an act may be too remote for the actor to be liable therefor. The court defined remote damages to be, those which are not an ordinary and natural, not an expected, not a necessary and usual result of the negligent act; and still further, as those which depend upon a concurrence of accidental and varying circumstances, over which the negligent party has no control. This was not a modern definition. The facts in the Ryan Case are familiar, but they can be repeated briefly. The defendant by its negligence in not keeping in sufficient good order its engine, or in not properly managing it, set fire to its own wood-shed and the contents thereof. The fire from this was communicated through an intervening vacant space of one hundred and thirty feet, to the building of the plaintiff standing on his premises, which were not in contiguity with those of the defendant, and it was destroyed. And the pith of the decision is, that this was a result which was not necessarily to

Opinion of the Court, per FOLGER, J.

be anticipated from the fact of the firing of the wood-shed and its contents; that it was not an ordinary, natural and usual result from such a cause; but one dependent upon the degree of heat, the state of the atmosphere, the condition and materials of the adjoining structures and the direction of the wind, which are said to be circumstances accidental and varying. The principle applied was the converse of that enforced in Vandenburgh v. Truax (4 Denio, 464), which was that the consequence complained of was the natural and direct result of the act of the defendant. This principle is said in the Ryan Case not to be inconsistent with that which controlled the disposition of the latter case, and to be unquestionably sound, but be applied according to sound judgment in each case as it arises.

The case from the Pennsylvania Reports is the same in its material facts, the same in the principle on which it is put, and in the process of reasoning by which that principle is applied to the facts.

I am of the opinion, that in the disposition of the case before us, we are not to be controlled by the authority of the case in 35 N. Y. more than we are by that of the long line of cases which preceded it, and which have been herein cited and adverted to. It announces no new principle. It recognizes the principle which it adopts as one before that established, and applying it to the facts therein existing, holds that the damage sued for was not the necessary and natural result of the negligent act. A different state of facts brought into the focus of the same principle, would give a different conclusion. It is proper, however, to say, that it is not necessary in this case to differ from or to question the reasoning in that case, which fortifies the conclusion there reached, by a consideration of the relations of men to each other in populous villages and cities, and the disastrous consequences to follow from holding one liable for his own or his servant's negligence by which a fire is kindled in his house which spreads to the property of one or more neighbors.

Let us look at the facts and circumstances in the case before