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§ 53. A man may burn stubble on his land, or use fire in any manner to clear his land, so long as he exercises ordinary care and prudence in guarding against its spread, or setting fire to another's property.

One who willfully lights a fire upon his own premises must use at least ordinary care to avoid its spread to the premises of his neighbor. It would, unquestionably, be culpable negligence to start a fire in any place where, to a person of ordinary intelligence, it is apparent that a spread of the fire and injury therefrom to another is reasonably to be feared.1

§ 54. One may burn rubbish or wood on his land. The owner or occupant of land has a right to use fire to consume rubbish, wood, or other things, and to clear his land for cultivation, and, having this right, if he use it with ordinary care to prevent the spread of fire, he cannot be held liable for damages if the fire extend to his neighbor's land and there destroy or injure property.2 So a man has the right to burn the stubble on

provided that 'no action, or 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 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 defense to one who negligently sets or manages a fire."

1 Teall v. Barton, 40 Barb. 137; Keefe v. R. R. Co. Sup. Ct. Minn. January, 1875. "The owner has the absolute right to use his property as he pleases, except so far as the effect of such use may be to invade or infringe some right existing in another."

2 De France v. Spencer, 2 Greene, (Iowa) 462; Calkins v. Barger, 44 Barb. 424; Stuart v. Hawley, 22 Barb. 619; Miller v. Martin, 11 Mo. 508; Averitt v. Murrill, 4 Jones' (N. C.) Law, 323; Clark v. Foote, 8 Johns. 421; Fahn v. Reichert, 8 Wis. 255; Hanlon v. Ingram, 3 Iowa, 81.

In most of these cases, the damage complained of resulted from fire spreading from burning stubble by defendant on his land, in a dry season, and the wind blew sparks thence to adjoining fields. The rulings were to the effect that burning of stubble, even at a very dry part of the year, and at the consequent risk of the fire spreading, was not sufficient negligence to charge defendant.

The circumstance that he who started a fire for legitimate purposes, upon his own land, did not keep constant watch of it, is not, alone, enough to establish culpable negligence. (Calkins v. Barger, 44 Barb. 424.) In this case, the defendant, in the early part of May, set fire to some log heaps on his land; the logs

his land, subject to the same general rule that he must use ordinary care to avoid spreading the fire upon the lands of others and there doing damage.1

§ 55. Negligence, burden of proof of in case of fire.— As to where lies the burden of proof of the exercise of ordinary care or negligence in case of fire, is to some extent an open

were old and damp, and were at a considerable distance from his house, and about a third of a mile from plaintiff's barn. The land where the fire was set was damp, near a swamp, and had been burned over the year before. The defendant lighted the fire and left it, and went away from home not to return for some hours, leaving it burning; the wind rose to a gale and blew the fire out from the log heap on to plaintiff's land, whence it spread to his barn and burned it. Held, that if defendant had no reason to apprehend that a gale would occur when he left home, he had a right to go away and leave the fire, and he should not be held responsible for the loss of the barn.

But in Hanlon v. Ingram, 1 Iowa, 108, the defendant set a fire on his own land to burn rubbish, and the fire spread to his neighbor's premises and there did damage; the Court charged the jury that defendant was liable only for gross negligence. This charge was held to be error; that the rule was that he who lights a fire must guard it with ordinary care, should take such precautions against its spread as would naturally characterize a prudent man in the ordinary care of his property.

So in Garrett v. Freeman, 5 Jones' (N. C.) Law, 78, defendant set fire to a log heap which was within five yards of a fence, and there was, lying around the place much loose dry wood and other combustible material, and there was also a dead, dry pine tree between the log pile and the fence; the weather was very dry and the wind rising; the pine tree caught fire, and fell across the fence, and set fire to plaintiff's property. The Court charged the jury that if there was no wind when the fire was started, the defendant could not be held for culpable negligence. On appeal, this instruction was held to be error, and judgment reversed.

"Every person has a right to kindle a fire on his own land for the purposes of husbandry, if he does it at a proper time and in a suitable manner, and uses reasonable care and diligence to prevent its spreading and doing injury to the property of others. The time may be suitable and the manner prudent, and yet, if he is guilty of negligence in taking care of it, and it spreads, and injures the property of another in consequence of such negligence, he is liable in damages for the injury done. The gist of the action is negligence, and if that exists in either of these particulars, and injury is done in consequence thereof, the liability attaches; and it is immaterial whether the proof establishes gross negligence, or only a want of ordinary care on the part of the defendant." (Hewey e. Nourse, 54 Me. 259.)

"But if a man engage in an act which the circumstances indicate may be dangerous to others, he must take all the care which prudence would suggest to avoid an injury." (McGrew v. Stone, 53 Penn. St. 436.)

1The rule is given in Hanlon v. Ingram, 3 Iowa, 81, as follows: "All of the circumstances should be carefully weighed, and unless they disclose, with reasonable certainty, that, in setting out the fire, and preventing its escape, the defendant has used those precautionary measures which, as a prudent and cautious man, he would with reference to his own property, he should be held liable."

question; whether he who caused the fire from which damage occurred must prove that he took due care to prevent its spread and take the affirmative of that proposition, or the plaintiff, who complains of the injury, must prove want of ordinary care. It is, however, now generally held to be the law, that the complaining party, as he must rely upon negligence, should upon that issue take the affirmative.1

56. Proximate damages alone recoverable.-In some of the States, it has been held that no one is liable for damage done to a neighbor's house by a fire which commenced on the land of the person complained against, and which, by his negligence, destroyed his own house, and spread through the air by a strong wind to houses not immediately adjoining. The damage is said to be too remote to afford a ground of action.

A distinction is claimed between the result of negligence, or the lack of due precaution, and an injury which results from malice or any active instrumentality of the party against whom damages are claimed; but the decisions appear to have turned upon the proximateness of the result to the cause, upon the principle that in determining accountability for the consequences of a wrongful act, or one culpably negligent, the immediate results, and not those which remotely occur, are to be regarded.2

This distinction appears to have had great weight in the minds of the judges, as it appears to have been generally conceded as law that, where the fire ran along a line of connected materials, such as dry grass, or forest trees, the person originally in fault

1 Turbervil v. Stamp, 1 Salk. 13. In this case, it was held that, the injury being shown, and that it resulted from a fire which defendant had set out, he was put upon his defense, and must show that he had taken ordinary care to guard against the spread of the fire and damage to his neighbors; but the converse of this was held in Tourtellot v. Rosebrook, 11 Met. 460, and in Batchelder v. Heagan, 18 Me. 32; that, in any case in which a person makes a fire on his own land, for a lawful purpose, and the fire spreads and does damage to another, the person who has suffered, and complains of the injury, must affirmatively allege and prove negligence, and that as the setting fire was a lawful act, it was, of itself, no evidence of negligence, which is the gravamen.

2"The negligently burning of a house, and the spreading of the fire to a neighboring house and the burning thereof, do not give the owner of the lost house a cause of action against the owner of the house in which the fire originated, because the damages are too remote." (Ryan v. N. Y. C. R. R. 35 N. Y. 210; Penn. R. R. Co. v. Kerr, 62 Penn. St. 353.)

is held liable for the whole damage, on the ground that the damage is the immediate and proximate result.1

But this distinction appears more nice than wise; it is difficult to see any just distinction between a fire which spreads and extends by running along the ground, or by continuous feeders in the shape of trees or dry grasses, and that where the wind

causes its extension.2

§ 57. Statutes as to damages by fire.-In Connecticut, one who sets fire to land is, by statute, made liable for all the consequences of its spreading to and doing damage on the land of another; but this statute has been held to be confined to such damages as occur from a spread of the fire, and not to extend to the case of a stranger who sets fire on land to which he has no right of possession. Against such an one, the commonlaw rule furnishes the means of redress.4

In North Carolina, a man must not set fire on his own land without giving notice to his neighbor, in writing, of his inten

1 Vaughn v. Menlove, 32 Eng. Com. L. 613; Vandenburgh v. Truax, 4 Denio, 464; Ryan v. N. Y. C. R. R. 35 N. Y. 214. Opinion by Ch. J. DeGrey.

2 Illinois C. R. R. v. McClelland, 42 Ill. 355, in which the sparks from a locomotive passed through the air, a long distance, and set fire; it appeared that the engine was not provided with best apparatus for arresting sparks; the company was held liable as for the injury, which was deemed the immediate and proximate result of negligence, notwithstanding the fact that the air was the medium through which the sparks passed.

Ryan v. N. Y. C. R. R. Co. 35 N. Y. 210, and Penn. R. Co. v. Kerr, 62 Penn. St. 353, are commented upon, and without substantial approval, in Webb v. R. W. & O. R. R. Co. 49 N. Y. 423 and 427-31. And in Massachusetts it has been distinctly held that a man who sets and keeps a fire on his own land negligently is liable for injury done by its direct communication to his neighbor's land, whether through the air or along the ground, and whether or not he might reasonably have anticipated the particular manner and direction in which it was communicated. (Higgins v. Dewey, 107 Mass. 494.) In England, also, it has been held that there is no ground for distinction between cases where fire spread from running along the ground or by sparks driven by the wind through the air. The spread of the fire is equally the result of natural causes, and the distinction is held to be without merit. (Fletcher v. Rylands, Law Rep. 3 H. L. 330; Smith v. S. R. R. Co. Law Rep. 6 C. P. 14.)

3 Conn. Rev. St. p. 84, Sec. 365. "Every person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all the damage done by such fire."

4 Grannis v. Cummings, 25 Conn. 165, in which it was held that a fire started by a person who, for a specific purpose, had a license to use the land on which he set the fire, did not come within the provisions of the statute; but such a case is governed by the common-law rule.

tion so to do, of at least two days, that such neighbor may guard against damage. The giving of the notice may be waived, however, by the owner of the adjoining land; but, unless such notice is given or waived, he who sets fire on his own land is liable for damages which therefrom result to his neighbor.3

The rule in California is that treble damages are awarded against him who negligently sets fire to his own woods, or negligently suffers any fire to extend beyond his own land, and thereby his neighbor suffers loss.

In Illinois, no one is allowed to set fire, save between March and November, and only then for the purposes of self-protection from prairie fires; and where damage occurs from fire spreading, the burden of proof is on him who set the fire, to show that he did so to protect himself from prairie fires, and that he used all due precaution to prevent the spread of his fire.

§ 58. State laws as to damage by fire.-In Georgia, no one, not a resident of the county where the firing is done, and who owns land therein, is permitted to fire any woods, lands, or marshes, and even such resident and land-owner must do so only between the twentieth of February and first of April, annually, and by notifying in writing those persons whose lands adjoin the premises whereon he proposes to set fire; the notice must be given at least one day before setting the fire, and any persons who, either by themselves or agents, permit fire to get into the woods, lands, or marshes, through neglect, are to be deemed as setting fire, and within the provisions of the act.

The penalty for violation of this statute is a fine—or, as it is called, "forfeit"-of five hundred dollars, one-half of which goes to the informer, and the balance to the educational fund of the county. And he who suffers by the fire may also recover his damages.5

In Michigan, every person who shall willfully or negligently set fire to any woods, prairies, or grounds, not his own property,

1 N. C. Rev. Code, 115, Chap. 16, Sec. 1.

2 Robertson v. Kirby, 7 Jones' (N. C.) Law, 477.

3 Averitt v. Murrell, 4 Jones' (N. C.) Law, 322.

4 Political Code Cal. Sec. 3344.

5 Code of Georgia, 1873, Secs. 1456-9.

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