smoking a cigarette. The fire destroyed all the property above mentioned, and much other valuable property, real and personal. involved in this case have been extensively case itself presents some novel features, I state my conclusions of law upon the evithere is hardly a conflict in the testimony. As to the more material questions of fact, dence adduced. Lease ofstreet I have had no difficulty in excluding the lease from the city council. To say nothing about the clause against assignment of the lease, it was plainly ultra vires, and void. The streets of the city do not belong to for storage of the council, but to the public, and by that I mean cotton. the public at large, and not merely the inhabitants of the city, and to their use they are forever dedicated. The city charter makes it the duty of the city council to keep them open and free from nuisance. It provides that "the city Council shall have the care, supervision, and control of all the public highways, bridges, streets, alleys, public squares, and commons within the city; and shall cause the same to be kept open and in repair, and free from nuisance." See Mansf. Dig. 737. The only legal effect of the lease, it would seem, is to render the city liable for the damages resulting from such a & Eng. Corp. Cas. 174. It makes no difference that, owing to licensed nuisance. Cleveland v. King, 132 U. S. 295, 28 Am. the declivity at the foot of Main street, the street at that point was not commonly frequented by vehicles. The requirements of the public as to property set aside for its perpetual use was not a matter to be passed on by the council, and it is plain that, by the establishment of a ferry or the come one of the most frequented of all the thoroughfares of bridge at that point, it might at any time bethe city, the expansion and amelioration of which cannot be hindered by leases of the streets by the city council. The law is well settled, as it ought to be, that all such leases are void. 2 Dill. Mun. Corp. § 660; McDonald v. Mayor, etc., of Newark, 42 N. J. Eq. 136, 16 Am. & Eng. Corp. Cas. 564; Harrisburg's Appeal (Pa.), 19 Am. & Eng. Corp. Cas. 603; Terre Haute Gas. Co. v. Teel, 20 Ind. 131. building of a same right to use Main street that others had; no greater, The Union Compress Company and the defendant had the and no less. Cotton or commodities of any Obstruction of street Nuisance. transportation, but no one can have the right to may be lawfully placed in the street for immediate appropriate any part of a street to a private use. The city ordinance that was read only gives emphasis to what was the law before it was passed, and what would remain the law if it were repealed. The storage of goods or impediments of any kind on the street for an unreasonable time is an act that constitutes a nuisance. Patterson v. Detroit, L. & N. R. Co. 56 Mich. 172, 19 Am. &. Eng. R. Cas. 415; Henry v. Dennis, 93 Ind. 452, 47 Am. Rep. 378; Maddox . Cunningham, 68 Ga. 431; Turner v. Holtzman, 54 Md. 148; Wendell v. Mayor, etc., of Troy, 39 Barb. (N. Y.), 336; Callanan v. Gilman, 107 N. Y. 360, 23 Am, & Eng. Corp. Cas. 59. And one who thus encroaches on a street for an unreasonable length of time is guilty of creating and maintaining a nuisance, whether the encroachment materially interferes with the use of the street or not. "The right to pass and repass upon a public highway is not restricted to any part, for 'the public are entitled not only to a free passage along the highway, but to a free passage along any portion of it not in the actual use of some other traveler.' I Hawk. P. C. chap, 32, § 11.". State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117, and note. In this case there was not only an obstruction of the street, but the obstruction was caused by many thousands of bales of cotton, a very combustible material, contiguous to the business center of the city. It was created and continued for several weeks through a very dry season, when the cotton was in danger of being fired by the sparks of passing locomotives, by persons smoking in the street, and by other means. Considering the fact that it would be next to impossible to extinguish a fire originating in this accumulation of combustible material until the whole of it should be consumed, and that the fire thus kindled would probably be communicated indefinitely to buildings and property throughout the city, involving not only great pecuniary loss, but probably loss of life as well, it is impossible to say that this aggregation of cotton thus placed was not a nuisance of a very alarming nature. What did happenthe burning of the cotton, with much valuable adjacent property—was just what might have been reasonably apprehended and what it seems was apprehended by the officers of the compress company. It is not necessary to say that the defendant was the sole party in fault in the matter; for whoever aids or assists in Nuisance- creating, maintaining, or continuing a nuisance, is responsible for any loss or damage that may be caused thereby. What was called the "cotton shed" of the compress company, at the foot of Main street, was simply a large brick building, covered with a gravel roof, two stories in height, the upper story being intended for the storage of cotton, having an incline by which bales of cotton were rolled down to the lower story for compression by the machinery which had been formerly operated in the lower story, but which had been removed some months before the opening of the cotton season of 1887. This lower story, not intended for the storage of cotton, was covered in front with iron, with several doors opening on the platform which formed a connection with the cars of the defendant on its side track, whenever they were placed there for the purpose of receiving it. As the cotton was not removed by the defendant as it came in, the upper story became filled, and new accessions of bales were placed in the lower story, until that was filled; whereupon cotton newly arrived was placed along the platform outside, and on the street, until it covered the entire street, for a considerable distance, except the narrow passage-way for pedestrians. Witnesses testify that, if the cotton had been removed as it came in, the compress company would have had room for the convenient storage of all cotton that was left there temporarily for the making up of lots for shipment. That the defendant is responsible for the state of things that resulted in the fire, causing the loss for which the plaintiff sues, I have no doubt. If it had removed the cotton as it was received, the cotton in the sheds would have been reasonably safe,-as safe as cotton deposited in other sheds in the city. This is not a suit upon the contract between the compress company and the defendant, but the action is based on the assumption that the defendant contributed to the creation and continuance of the nuisIf A. should make a contract with B., by which the latter should contract to deliver to him in front of his premises in the street a certain quantity of gunpowder, agreeing that he would remove it to a place of security, or to a place less dangerous, and he should not remove it after delivery, but should suffer it to remain in the street until it exploded, to the injury of a third person, he could hardly be heard to say that the nuisance was created by B., and not by himself. One may become responsible for aiding in the creation of a nuisance either by action, or by neglecting to act. It is not necessary to weigh the comparative responsibility of the defendant and the compress company. The latter might have broken off its contract with the defendant, and have refused to receive cotton after the breach of the contract became apparent; but I do not think that it lies in the mouth of the defendant to say that it ought to have done so; and it seems to me that the prime fault was in the defendant in not removing the cotton as it had agreed to do, and promptly, as the exigency of the case demanded. At any rate, by its participaloss that might occur, without regard to any question of lia ance. bility on the part of the compress company. Where the negligence of two or more persons contributes to occasion a loss to a third person, they are both liable for. the damage sustained. Slater v. Mersereau, 64 N. Y. 138. So where a landlord has a sidewalk that is out of repair, and he leases it, with a covenant on the part of the tenant to keep in repair, and after that one is injured by reason of the defect in the sidewalk, the landlord and the tenant are both liable for the injury. Davenport v. Ruckman, 37 N. Y. 568. Where an injury is the result of two concurring causes, the party responsible for one of these causes is not exempt from liability, because the person who is responible for the other cause may be equally culpable. Lake v. Milliken, 62 Me. 240; Barrett v. Third Ave. R. Co., 45 N. Y. 628; Pretty v. Bickmore, 6 Moak, Eng. R. 182. If we might say that the nuisance was created by the compress company, it would nevertheless be true that the defendant would be liable for the loss arising from the conflagration, since it is true that any one that continues a nuisance is as guilty as he that creates it. Wasmer v. Delaware, L. & W. R. Co., 80 N. Y. 212, 1 Am. & Eng. R. Cas. 122; Brown v. Cayuga & S. R. Co., 12 N. Y. 487. Those who create or continue a nuisance in a street are bound, at their peril, to keep the street as safe as if the nuisance was not there. Irvin . Wood, 4 Rob. (N. Y.), 142; Wendell . Mayor, etc., of Troy, 39 Barb. (N.Y.), 336; Anderson . Dickie, 26 How. (N. Y.) Pr. 117; Congreve . Morgan, 18 N. Y. 84; Bizzell v. Booker, 16 Ark. 308; Bonnell v. Smith, 53 Iowa, 282. One who creates a nuisance, or who continues it, is liable for any damage caused thereby, though the immediate cause may have been the negligence of another person. Myers v. Malcolm, 6 Hill. (N. Y.), 292; Wood, Nuis. § 142; McAndrews v. Collerd, 42 N. J. Law, 189. station. The liability of the defendant may, however, be placed on a distinct ground equally secure. The denial in the answer that the defendant did not make the cotton sheds Accumulation one of its receiving stations is overturned by all of freight at the evidence in the case. Practically all the cotton that was shipped from Little Rock in the autumn. of 1887, prior to the fire, was shipped there. It will not avail the defendant to say that the cotton at the sheds was in the exclusive control of the compress company. As for the 1,463 bales for which it had issued its bills of lading, they are by law conclusively presumed to have been in its possession, (Acts Ark. 1887, p. 84;) and, as to the 1,211 bales for which bills of lading had been issued by the Memphis & Little Rock Railroad Company, they were held by the compress company subject to its orders, and as its agent. Without these the remaining cotton, embracing that for the value of which this suit is brought, could not have been destroyed in the way in which it was destroyed.. Now, a railroad company which allows explosive or combustible materials to accumulate at a station until they become a nuisance must necessarily become liable for any injury sustained by reason thereof. Denver, S. P. & P. R. Co. v. Conway, 8 Colo. 1; Scott v. Hunter, 46 Pa. St. 192; Wood, Nuis. § 142; Lake v. Milliken, 62 Me. 240; Bradley v. People, 56 Barb. (N. Y.) 72. Negligence- The plea of contributory negligence is not sustained. The delivery of the cotton at the sheds by the insured was in no sense a proximate cause of the loss, and no act of negligence on the part of the plaintiff that is not a Contributory proximate cause of the injury complained of can be considered in the light of contributory negli- cause. gence, such as will bar a right of action. Beach, Contrib. Neg. § 10. Moreover, the defendant gave bills of lading for all cotton that was offered to it for shipment, down to the very day of the fire, and it cannot now be heard to say that it was the fault of any one to trust it to perform its duty because it had shown itself to be untrustworthy in the past. Immunity from liability is not to be secured by a train of misconduct, however long continued. Authorities. A few cases illustrative of this principle may be mentioned. A tenant rented certain lands for 1877, knowing that a railroad company maintained a nuisance thereon in the shape of a pond of water, which affected the health of his family. With this knowledge he rented the place for the year 1878, when it became more sickly, so much so that he was unable to gather his crops; and he brought an action against the railroad company; and it was held that the tenant could presume that the latter would abate the nuisance; that the law did not require him to remove, but did require the company to abate the nuisance. Central R. Co. v. English, 73 Ga. 366, 29 Am. & Eng. R. Cas. 530. The law will not hold it imprudent in a person to act upon the presump tion that another will act in accordance with the rights and duties of both, even though he may have formerly conducted himself in a contrary manner. R. Co., 29 N. Y. 383. The subject is discussed in Kellogg . Chicago & N. W. R. Co., 26 Wis. 223; Fraeler v. Sears Union Water Co., 12 Cal. 555; Bowas v. Pioneer Tow Line, 2 Sawy. C. Ct. 27. See, also, Beach, Contrib. Neg. § 10, 13, 18, 23: Damour v. Lyons City, 44 Iowa, 276. Moreover, if it were held to be negligence on the part of the insured and others to deposit their cotton in the sheds, knowing that the defendant had failed to remove other cotton promptly, as its duty required, still if the defendant, its officers and agents, knew Newson v. New York Cent. |