\M ivsn UIFOff^ '•'rjufuiwcAv^"^" , ^A nW :/n.i 111 .^^ % 1(7! ^ # <^X^1 "V/Ji; if! I I c- Q ^ ANCflfj>. * ■ ■■ so *7aj,.. \ jRARYQc 5 ? .. "c?? -KJ J>*=»1 rtfUNIVERSZ/v o ^lOSANCElfj^ o .- -I t//CM3AI»lft.JttV' OPCAllFOff^ ^OFCAllFOff^ ^OFfAllFOft^ ^OFCAUFOR^ ^^MEUNIVER% SOr-^S '^'^DNVSOl^ "^imK I < '-<-/i s- *^JU'J. «( 1 J\El/MIVER% ^lOSANCFU:r^ f 4\EUNIVERy//v I %a3AINfl]l\V^ ^ .l^"^ K 'tis. '^/vaaAwnMV' -j^t-UBRARYQ^ I WIT I IV£)I ^OFCAllFOft^ ^l•UBRARYQr ^^IIBRARYO^. ^OFCMIFOR^ ;VERS//, ^lOSANCnCf^ .53aM!MIVERr/A <»?U3NVS0\'^ ^5ME«NIVER% < ^J^UDKVSOV^" ^lOSANCEl^^ ^10SANCEI% 09 "^/^aaMNaawv^ A^NtUBRARYQ^. ^'EIIBRARYQ<- S 1 fr-' ^ :^ ^tfOJITVDJO'*^ ^OFCAUFOfl*^ ^OF- >&AHvaaii'^v^ >&Ai ^WEUNIVERy//) »■ #0 O — ^ I ! ' ' 8 T/W The Law of the Farm. ;i¥ 923/5 T II E LAW OF THE FAEM; A TEEATISE LEADING TITLES OF THE LAW INVOLVED IN Farming Business and Litigation. BV A. W. THOMPSON. 1. 1 Attorney ancT Counselor at Law. SAN FRANCISCO: SUMNER WHITNEY & CO. 1876. Copyright 1876, By a. W. THOMPSON. r TO MY BRETHREN, The Lawyers of the Agriciiltural Districts, The Patrons of Husbandry, Tbi3 volume is respectfully dedicated, with the hope that it may prove convenient and useful to them all. ?5G0r8 PEEFACE The writer, for fifteen years, superintended his farm and also practiced law, having his office in a neighboring town. For something more than two years he has acted as the attorney of the several " Grange " corporations at San Francisco, and has been so situated as to become aware that there exists considera- ble demand for a book adapted to the wants of farmers, country lawyers, justices, and factors of country produce, giving, tersely, the law applicable to farming, and its kindred jnirsuits of dairy- ing and stock-raising. This demand the author has attempted to meet by the preparation of this book, hoping that his lack of ability to do justice to the subject may be in some measure obviated by the amount of labor which he has put into the work, and by which he has, as he believes, been able to present all that apj)ears In the statutes, reports, and text-books which belongs in a treatise under the distinctive title of " The Law of the Farm." A. W. THOMPSON. November, 1876. TABLE OF CONTENTS. Part I. AGRICULTURE. CHAFPER I. LAWS FOR THE ENCOURAGEMENT OF AGRICULTUHE. § 1. The value of agriculture to the body politic. § 2. The Department of Agriculture. ' § 3. Agricultxiral colleges. § 4. Expenses of agricultural colleges to be paid by the States. § 5. Special provisions by acts of Congress as to agricultural colleges. CHAPTER II. AGRICULTURAL SOCIETIES. § 6. The United States Agricultural Society. § 7. Statutes concerning agricultural societies. § 8. Agricultural societies in certain States. § 9. State laws as to agricultural societies. § 10. Statutes affecting agricultural societies. § 11. Statutes in certain States concerning agricultural societies. § 12. Summary of legislation for agricultural societies. § 13. Police powers by agricultural societies. § 14. General laws as to corporations affecting agricultural societies. X TABLE OF CONTENTS. CHAPTER ni. CROPS. § 15. Growing crops the subject of contracts. § 16. Status of growing crops on sale of land. § 17. Reservation of growing crops on sale of laud. § 18. "When reservation of crop should be in writing. § 19. Query as to necessity of written reservation of crop. § 20. Value of rule that reservation of crop must be in writing. § 21. As to growing crop when land is mortgaged. § 22. Eights of tenant as to crops on mortgaged lands. § 23. What protection tenant can have as to his crop against mortgagee. § 24. Levy of execution on growing crops. § 25. Distinction between //'wc^h.s naturales ami fructus industriales. § 2G. Exemption of growing crops from seizure. § 27. Construction of statutes exempting growing crops. § 28. Waiver of exemption of growing crops from seizure. § 29. Chattel mortgages on growing crops. § 30. Disposal of crops before they are raised. § 31. When anticipated crops may be mortgaged. § 32. Notice of chattel mortgage on crops. § 33. Relation of homestead exemption to growing crops. § 34. Statute of Frauds as to growing crops. § 35. Ownersliip of crop dependent upon title to land § 36. General jiropositions as to disposal of crops. § 37. Prima, vestura and annual crops. CHAPTER IV. FERTIIilZERS. § 38. General rules as to fertilizers. § 39. Special statutes as to fertilizers. § 40. State laws concerning fertilizers. § 41. Ownersliip of manure made on a farm. § 42. English rule as to manure on a farm. § 43. Rule in America as to ownership of manure. § 44. Title to manure, as between executor and heir. § 45. Title to manure on sale of farm. § 46. Title to manure, as between landlord and tenant. § 47. Usage as to ownershii) of manure'. § 48. Exceptions to general rules as to ownersliip of manure. § 49. The riglit to collect sea-weed for manure. TABLE OF CONTENTS. XI Part TI. DAMAGE S CHAPTER V. INJURY BY FIRE. § 50. General rule as to damage by lire. § 51. No redress for damage by unavoidable accident. § 52. Common-law rule as to damage by fire. § 53. One may burn stubble, when. § 54. One may burn rubbish or wood on his land. § 55. As to burden of proof of negligence in case of fire. • § 56. Proximate damages alone recoverable. § 57. Statutes as to damage by fire. § 58. State laws as to injury by fire. § 59. A trespasser responsible for damage by fire. § 60. Liability of hunters or travelers for damage by fire. § 61. Damage by fire from steam-thresher. § 62. Negligence in use of steam-thresher. § 63. Duty of proprietor of steam-thresher to use appliances to prevent escapa of sparks. § 64. Owner of steam-thresher not an insurer. § 65. Fires caused by locomotives, common-law rule. § 66. Rule in America as to fires by sparks from locomotives. § 67. Statute as to fires from locomotives. § 68. State laws as to fires from locomotives in America. § 69. Value of common-law rule as to fires from locomotives. § 70. Burden of proof of negligence when fire occurs from locomotive. § 71. Duty of railroad corporation to guard against fire. § 72. Care required to jirevent escape of fire from locomotive. § 73. Duty of railroad comjiany to extinguish fires caused by locomotives. § 74. Proximate and remote damage by fire from locomotive. § 75. Liability of railroad companies for damage by spread of fire. § 76. Duty of farmer to guard his crops against fire from locomotive. § 77. Farmers not bound to guard against fire. mi TABLE OF CONTENTS. CHAPTER VI. DAMAGE TO LIVE-STOCK BY EAILROAJ) CARS OR ENGINES. § 78. Liability of railway for injury to animals. § 79. Contributory negligence by o\vner of animals. § 80. The owner of animals must take due care of them. § 81. Damage by locomotives to animals running at large. § 82. Collision with live-stock where the railway company has right of way. § 83. Contract to fence by railroad company with land-owner. § 84. Responsibility of railroad companies to the public. § 85. Burden of proof of negligence when animals are injured by locomotives. § 86. First duty of railway companies to guard their trains. § 87. Railway companies may regulate speed of trains. § 88. Laws as to collision with animals are not for the benefit alone of the owner of live-stock. § 89. The duty of railway companies as to gates and other openings in fences. § 90. Reasonable diligence only required in keeping gates closed. Part III. ANIMALS § 91. § 92. § 93. § 94. § 95. § 96. 5 97. § 98. § 99. § 100. § 101. § 102. CHAPTER VH. HIRE OF ANIIMALS. Contract of hire of animals. Special covenants by the lettor of animals. Warranty of title implied by letting animals. The hirer of animals must feed and care for them. Extraordinary expenses incurred in care of hired animals. AVhen hired animals arc stolen, loss falls on owner. Negligence sutticient to charge hirer for loss of animals. Hirer of animals liable for loss from servants' negligence. Hirer of animals lias a special property in them. If the hirer of animals abuse them. Distinction between hirer and borrower of animals. Borrower of animals restricted to stipulated use of them. TABLE OF CONTENTS. XMl CHAPTER VUI. SALE OF ANIMALS. § 103. General rules in .sales of animals. § 104. Sales made by minors. § 105. Sales made by married women. § 106. Sales made by insane persons and idiots. § 107. Contracts made by drunkards. § 108. Mutual assent of parties to a sale. § 109. Taking animals on trial. § 110. Fraud vitiates all contracts. § 111. Misrepresentations of material facts destroy the contract. § 112. Concealment of material facts. § 113. Statute of Frauds in sale of animals. § 114. Mistakes as to material facts in sale of animals § 115. Let the buyer beware. CHAPTER IX. WARRANTY ON SALE OF ANIMALS. § 116. Contract of warranty in sale of animals. § 117. "Warranty of title by sale of animals. § 118. "Warranty may be made any time before sale. § 119. Express warranty. § 120. "Warranty to be made good in letter and spirit. § 121. Visible defects not covered by warranty. § 122. "Words of description, when a warranty. § 123. Expression of opinion, when a Avarranty. § 124. Implied warranty. § 125. "Warranty of merchantable character of article sold. § 126. "Warranty against latent defects. § 127. "Warranty in sales by sample or specimen. § 128. Implied warranty in cases of fraud. § 129. Measure of damages on breach of warranty. CHAPTER X. "WARRANTY OF SOUNDNESS OF ANIMALS. § 130. "What constitutes soundness and unsoundness. § 131. Meaning of the word " sound," in warranty of horses. § 132. The measure of unsoundness. § 133. Diseases which do or do not constitute unsoundness. Xl\ TABLE OF CONTENTS. CHAPTER XI. THE LAW AS TO HORSES. § 134. Legal ethics as to horses. § 135. Horse-breakers and trainers, their duties and rights. § 136. Care and skill required of horse-breaker or trainer. § 137. Lien of horse-breakers and trainers. § 138. Lien of "stander" of stallions. § 139. Veterinary surgeons, their duties and rights. § 140. Malpractice by veterinary surgeons. § 141. The veterinary surgeon has a lien. § 142. Farriers, their rights and liabilities. § 143. Lien of a farrier. CHAPTER Xn. CATTLE. § 144. Special laws for protection of cattle from disease. § 145. Effect of statutes for protection of cattle from contagion. § 146. Sale of cattle affected by contagious disease. § 147. Laws to prevent importation of diseased cattle. § 148. Marks and brands. § 149. Drovers of cattle, their rights and duties. § 150. Bight to graze cattle on open commons. CHAPTER XIH. LAWS RELATING TO SHEEP. § 151. Laws for protection of sheep from dogs. § 152. Measure of damage done to sheep by dogs. § 153. Ignorance of vicious habits of dogs no defense. § 154. Liability of owners where several dogs attack sheep. § 155. Soundness of slieep — Infectious diseases. § 156. Protection of sheep from infectious diseases. § 157. Duty of shepherd and agistor of sheep. § 158. Sheep taken on shares. § 159. Rights of owner and bailee of sheep. § 160. Wool, peculiar duties of vendor of. CHAPTER XIV. HOGS. § 161. Caveat emptor, in sale of bogs. § 102. Pjamest-money in purchase of hogs. TABLE OF CONTENTS. XV § 16s. Sale of swino affected by contagious disease. § 164. Words of commendation not a warranty. § 165. Distinction between "hog" and "pork." § 166. The business of preparing pork for market. § 167. As to damage by hogs in trespassing. § 168. Killing hogs found "damage feasant." CHAPTER XV. DOGS. § 169. Property in dogs differs from that of other animals. § 170. The law will protect owners of dogs in their property. § 171. Police power to regulate keeping of dogs. § 172. Sheep-killing dogs. § 173. The law of a dog-fight. § 174. A person may kill a dog assaulting him. CHAPTER XVI. DANGEROUS ANIMALS. § 175. Scienter, common-law rule as to. § 176. Owner liable for damage by vicious animal. § 177. Negligence in guarding dangerous animal. § 178. Harborer of dangerous animal, liability of. § 179. Liability ceases when vicious animal is stolen. § 180. On sale of dangerous animal, notice must be given. § 181. Joint o%vners of dangerous animal, their liability. § 182. Measure of damages for injuries by vicious animals. § 183. The right to kepe animals which are dangerovis. CHAPTER XVn. PASTUKAGE OF ANIMALS. § 184. General rules of bailment applicable to agistors. § 185. Agistors not insurers. § 186. Implied covenants on part of agistors. § 187. Negligence of agistors, bvirden of proof. § 188. Agistor' s liability for trespass by animals. § 189. Agistors have no lien at common law. § 190. Agistors have no lien as bailees for hire. § 191. Agistors have possessory interest in animals. § 192. Agistor's powers when animals are injured or stolen. XVI TABLE OF CONTENTS. • CHAPTER XVIII. MALICIOUS INJURY TO ANIMALS. § 193. Malicious miscliief as a comiuou-law offense. § 194. Malicious mischief in the United States. § 195. Actual malice, against the owner, must appear. § 190. Criminal statutes as to injury of domestic animals. § 197. State laws as to malicious injury of animals. § 198. Laws in Georgia as to uaalicious injury of animals. § 199. Statutes concerning malicious injury of animals. § 200. State laws as to damage to domestic animals. § 201. Malicious injuiy of animals, criminal laws. § 202. Laws of several States as to injury of domestic animals. § 203. Criminal law as to malicious injury of animals. § 204. Statutes as to malicious injuries to animals. § 205. Construction (jf statutes for prevention of willful injuiy to domestic animals. § 206. The definition of malice. § 207. As to what constitutes "injury to animals." CHAPTER XIX. FENCES. § 208. The use of fences to protect crops. §209. Common-law rule: he who keeps cattle must fence. § 210. The value of this rule in the United States. § 211. In some of the States this rule never obtained. § 212. The common law, how far adopted in America. § 213. No general rule as to fencing in the United States. § 214. Statutes of several of the States as to fencing. § 215. State laws as to fencing against stock. § 210. Prescription to fence at common law. CHAPTER XX. LAWFUL FENCES. § 217. States may i)rescril>e wliat shall be lawful fences. § 218. Statute laws control as to partition fences. § 219. General cliaracteristics of fence laws. § 220. State laws as to wliat shall be lawful fence.s. § 221. Fence laws in certain States. § 222. State laws as to lawful fences. § 223. Lawful fiances in certain States. § 224. Rivera may be lawful fences." TABLE OF CONTENTS. § 225. Fences which are as efficient as lawful fences. § 220. Obligation of coterminous iwoprietor as to fencing. § 227. Owner of uninclosed lands need not join in fencing. § 228. Division fence on either side of water-course. § 229. Fence-viewers and their duties. § 230. Mode of acquiring jurisdiction by fence-viewers. § 231. Award of fence-viewers a lien on land. § 232. Fence-viewers to assess damages done by animals. CHAPTER XXI. RAILROAD FENCES. § 233. Duty of railroad comjiany to fence. § 234. Damage by engines running into animals. § 235. General rules as to obligation to fence by railroad companies. § 236. State laws as to fencing by railroad companies. § 237. Liability of railway comiJanies, rulings of State Courts. § 238. Application of fence laws to railway companies. § 239. Construction of fence laws as to railroads. § 240. Laws to compel railroad companies to fence. § 241. Damage to live-stock by locomotives. CHAPTER XXII. POUND LAWS AND ESTRAYS. § 242. Right to distrain animals damage feasant. § 243. The common-law rule as to animals found doing damage. § 244. Pound laws in the L^nited States. § 245. The constitiationality of pound laws. § 246. Proceedings under pound' laws, actions in rem. § 247. Pound laws must be strictly followed. § 248, Title acquired at a pound sale. Farm — 6. xviii TABLE OF CONTENTS. Part IV. PEESONAL RELATIONS. CHAPTER XXIII. MASTER AND SERVANT. § 249. The relation of master and servant. § 250. The master should guard against personal injury of servant. § 251. The master no insiu-er of servant's life or health. § 252. The master may regulate hours of labor. § 253. Servant must obtain master's leave to absent himself. § 254. Servant bound for term of service agreed upon. § 255. Sickness or inability of servant terminates engagement. § 25C. By misconduct, servant warrants his discharge without pay. § 257. Misconduct, to warrant discharge without pay, must be serious. § 258. Master must pay for term agreed upon, when. § 259. The contract for j)ayment of wages. § 260. If the servant fall sick or become disabled. § 261. The master has a charge of the servant's health. § 262. Master not bound to give a " character." § 263. Damages for enticing away servant. § 264. Liability of master on contracts by servant. § 265. The master's liability for injuries by servant. § 266. The master's responsibility ends, when. § 267. Servant shoidd reimburse master for losses. CHAPTER XXIV. FACTORS AND BROKERS. § "ifiS. A factor differs from a broker. § 269. Sold'note and Ijouglit note. § 270. Tlie broker agent for the seller. § 271. Real estate brokers — when their commissions are duo. § 272. Implied warranty of title, vendor to Virokcr. § 273. Factors, tlieir duties and powers. § 274. The factor lias lien on goods consigned to him. TABLE OF CONTENTS. XIX 5 275. Foreign factors generally treated as principals. § 276. A factor " del credere." § 277. Presumptions of knowledge of consignor as to usages of trade. § 278. When and to what extent factor may pledge goods. § 279. Factor cannot iiledge goods for his debts. § 280. Innocent pledgee of factor not i^rotected. § 281. Consignor may recover of pledgee value of goods. § 282. Ignorance that goods were consigned, no defense to pledgee. § 283. Consigned goods not liable for factor's debts. § 284. Factor must obey consignee's orders. § 285. Purchase by factor of goods consigned to him. § 286. Factor not an insurer. § 287. Objections to employment of "middle-men." § 288. Farmer may sell produce without license. CHAPTER XXV. CARRIERS. § 289. Common carrier an insurer, to what extent. § 290. Common carrier not an insurer, when. § 291. Common carriers not insurers of live-stock. § 292. Right of carriers to limit responsibility. § 293. Limitation of carrier's responsibility by special contract. § 294. The carrier has a lien. § 295. Common carrier must show no partiality. CHAPTER XXVI. LANDLORD AJSTD TENANT. § 296. Covenant for quiet enjoyment. § 297. Covenant against incumbrances. § 298. Obligation to pay taxes. § 299. Common-law rule as to repairs. § 300. Distinction in farming leases as to repairs. § 301. Tenant's right to make alterations. § 302. Distress for rent. § 303. Landlord's title may not be disputed by tenant. § 304. Lease may be attacked by tenant for fraud. § 305. As to waste, in farming leases. § 306. Right of tenant to cut trees for fuel. § 307. Tenant's duty to preserve property. § 308. Tenant's right to remove fixtures. § 309. Distinction, as to removal of fixtures, against agricultural tenants. XX TABLE OF CONTENTS. \ CHAPTER XXVIL PARENT AND CHILD. § 310. Duty of the father to support his child. § 311. The father must educate his children. § 312. The contracts of infants arc voidable, not void. § 313. The parent's right to earnings of his child. § 314. The father may emancipate his child. § 315. Parent responsible for child's torts, when. § 316. Right of recovery for injury to child. § 317. Duties of the child to its parent. § 318. Transactions, between parent and cliild, as to stranger.s CHAPTER XXVHI. GUARDIAN AND \\'A11D. § 319. The relation of guardian and ward. § 320. General duty of guardian. § 321. Jurisdiction of Courts of Chancery. § 322. The guardian r(;preseuts the Court, wheu. § ;323. The guardian must take no chances with ward's property. § 324. Neglect, by guardian, to invest trust funds. CHAPTER XXIX. APPRENTICE AND MASTEIi. § 325. The relation of master and apprentice. § 326. The father's power to bind his son apprentice. § 327. Statutory provisions as to master and apprentice. § 328. Who may assent to binding out a child. § 329. The contract of apprenticeship. § :i30. Persuading apprentice to leave his master. CHAPTER XXX. RAISING CROPS ON SHARES. § 'Ml. Distinction between leasing land and farming on sljares. § .'i32. Parties to cropping contract, tenants in common. § :i33. The cropper on shares not a lab(jrer for liire. § 334. Possession of growing crop under Imsbandry contract. TABLE OF CONTENTS. XXI § 335. The "cropper" must farm in a "husbandlike" manner. § 336. As to what is " proper husbandry." § 337. When " cropping " contract becomes an ordinary tenancy. § 338. Agreement to pay with part of crop makes a tenancy. § 3.39. Intention of parties characterizes the contract. § .'>40. Cropping on shares a partnership, when. CHAPTER XXXI. DAIRY CONTRACTS. § .341. Peculiar characteristics of dairy contracts. § .342. Owner may retain partial control of property. § 343. O^vTier may retain control sufficient to guard his interest. § 344. The owTier may dictate as to breeding cows. § 345. Covenant to raise calves. § 346. Lease of real and personal property by same contract. § 347. Landlord's loss of rent by interference with leased property. § 348. Possession of real and personal property under dairy contract. § 349. Right to " increase " from cows under dairy contract. § 350. Duty of tenant under dairy contract. § 351. For loss by theft, hirer of animals not responsible. § .352. Cattle must be kept on the land designated. Part V. EEAL ESTATE. CHAPTER XXXn. GENERAL PRINCIPLES OF THE LAW AS TO REAL PROPERTY. § 353. The law of real property. § 354. Real property is corporeal or incorporeal. § 355. A fee-simple. § .356. Estates tail. § 357. An estate for life. § 358. An estate by curtesy. § 359. Dower. TABLE OF CONTENTS. § 360. Estate for years. § 361. An estate at will. § 362. Joint tenancy. § :]63. Tenancy in common. CHAPTER XXXIII. BIGHT OF WAY. § 364. Easements and servitudes. § 365. General characteristics of easements. § 3WJ. Easements may be either positive or negative. § 367. Eight of land-owner in soil of road. § 368. Ways are appendant or appurtenant, when. § 369. A right of way may be in gross. § 370. A way of necessity. § 371. Presumptions as to way of necessity. § 372. Meaning of the words " a way of necessity." § 373. A way by grant. § 374. Implied grant of way when land is sold. § 375. What use of land implied by grant of way. § 376. Repairs of road over another's land. § 377. A way by prescription or user. § 378. Statute of Limitations the measure of time of user. CHAPTER XXXIV. RIPARIAN RIGHTS. § 379. Lands bounded by navigable waters. § 380. Lands boimded on streams not navigable. § 381. Ownersliip of water in a stream. § ;i82. Right of detention of water of a running stream. § 383. Rights of o'mier of land tlirough which a stream runs. § 384. General rules as to rights of riparian projirietors. § 385. No absolute ownership of water. ^ § 386. Each riparian j)roprietor has a right to use the water. § 387. Water may be used for natural purposes. § 388. Right to use water for irrigation. § 389. Reasonable consumption of water depends on circumstances. § 390. Right of proprietor to have water unpolluted. § 391. Accretion on land created by alluvium. § 392. Islanil situated in a river. § 393. Ownership) of water-power of a stream. § 394. Mill privilege. TABLE OF CONTENTS. CHAPTER XXXV. ROADS .VND HIGHAVAVS. § 395. Public roads, rights of publif and of land-o^vner. § 396. Title to land in roadway. § 397. Estate retained in roadway by owuor of land. § 398. Bights of public in a highway. § 399. Eight of public to soil and timber in highway. § 400. The public has no right of pasturage in highway. § 401. Eights of drovers upon public roads. § 402. Public right of way, how obtained. § 403. Eminent domain. § 404. Dedication of private property to public use. § 405. Private roads. § 40f). Legislation as to private road.s. Part I. AGEICITLTITEE. Farm— 1. | 1 ] EXCOURAGEMENT OP AGRICULTURE. § 1-2 CHAPTER I. LAWS FOR THE EXCOURAGEIVIENT OF AGBICULTUBE. § 1. The value of agriculture to the body politic, § 2. The Department of Agriculture. § 3. Agricultural colleges. § 4. Expenses of agricultural colleges to he paid hy the States. § 5. Special provisions by acts of Congress as to agricultural colleges. § 1. The value of agriculture to the body politic has b^'en generally recognized, and, from an early date in the history ol national and State legislation, the propriety of fostering it by special statutes admitted. As early as 1817 an a,ct was passed by Congress, offering re- wards and granting privileges to a colony of French emigrants, skilled in the culture of vines and olive trees, to induce them to establish that branch of industry in the United States,^ and from that time forward much attention has been given to this class of legislation, the result of Avhich has been that laws for the encouragement of agriculture form a leading characteristic of the statutes of the nation and the several States. § 2. The department of agriculture, in the Government of the United States, was by act of Congress established at the national capital. May 15th, 1862, the duties for the j)erformance of which the department was created, being to acquire, and dif- fuse among the people of the United States information upon subjects connected with agriculture, and to procure, propagate, and distribute to residents in the several States and Territories new and valuable seeds, plants, and trees.^ A commissioner of a""riculture is made the head of this department, and under him are employed skilled botanists, gardeners, entomologists, and other persons learned in the natural sciences, and by their co- 1 U. S. Stats, at Large, Vol. 3, p. 374. ^ ji^ia, Vol. 12, p. 387. § 3 EXCOtTlAGEMENT OF AGRICULTURE. 4 operation the commissioner collates all available information, by statistics, experiments, and culture, and also collects new and valuable seeds, plants, and trees, for gratuitous distribution to such pei'sons as, by culture and experimental farming, will dem- onstrate their value, and where found to be desirable acquisitions to the agricultural or pomological wealth of our country, will economise seed, cuttings, or grafts, so as to bring the several plants or trees into general culture. The results of these labors, the information obtained, is given to Congress by annual reports ; and specimens of the seeds, plants, and trees, obtained or raised, are sent to residents in the various States who are engaged in pur- suits of such a character as to be interested in the improvement of agricultural and ])omological products. The public appreciation of the importance of the labors in- trusted to and the value of results obtained by this department has been such that liberal annual appropriations of money have been made for its support, and this branch of the General Gov- ernment has become very efficient and of great public utility.^ § 3. Agricultural colleges.— -Special provision for the estab- lishment and maintenance of colleg-es, in which agriculture and the mechanic arts are to be taught, was made by act of Con- gress, approved July 2d, 1862, by the terms of which is allotted to each State a quantity of the public domain, not mineral, equal to thirty thousand acres for each senator and represent- ative in Congress to which the States arc respectively entitled by the apportionment under the census of 1860 ; ^ and where it occurs that within any State the nation has not the requisite lands to meet this allotment, the Secretary of the Interior issues, to such State, land scrip to the amount in acres of its share of the puljlic domain under the provisions of the act. No State can locate any of this scrip, but the assignees of the State may do so upon any of the unappropriated lands of the United States which are subject to sale at one dollar and a quarter an acre.^ Not more than one million acres can be located by such 1 March ;30tli, 1807, .?50,000 was appropriated to this department forthe sole pur- pose of providing for the purchase of seeds for distribution in the Southern States. (U. S. Stat.s. at Large, Vol. 15, p. 28.) 2 U. S. Stats, at Large, Vol. 12, p. 503, Sec. 2. «Ibid, Sec. 2. 5 ENCOURAGEMENT OF AGRICULTUHE. § 4 assignees in any one of the States,^ and no such locations could be made within one year from the date of the passage of tlie act.2 § 4. All the expenses must be paid by the States, in- cluding all disbursements requisite to make the donation avail- able for the purposes contemplated, such as those incident to the location of the land, the sale of it, or of the land scrip, the collecting, handling, and paying out of the money realized therefrom, so that the entire proceeds shall be applied, without diminution, to the purposes provided in the act.^ All moneys derived from the sale of the lands or scrip shall be invested in stock of the United States, or of the States, or some other safe stock yielding not less than five per cent, per annum upon the par value of the stocks, and the fund thus created and invested shall constitute a perpetual fund and re- main forever undiminished,^ except that ten per cent, of the capital of the fund may be expended for the purchase of lands for sites of colleges or for experimental f arms.^ The interest of the fund shall be inviolably appropriated by each State to the endowment, support, and maintenance of at least one college, where the leading object shall be, " w^ithout excluding other scientific and classical subjects, and including military tactics," to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may prescribe ; and if any portion of this fund be lost, it shall be replaced by the State ; no part of the fund shall be used in the purchase, erection, preservation, or repair of any building.^ " Each State shall provide, within five years, at least 1 Ibid, Sec. 2. It api>6ars that tie State of "VTisconsin violated the provisions of this section, as May 5th, 1870, Congress passed an act legalizing excessive issues and locations of this scrip hy that State, and directing the Commissionei of the General Land Office to issue patents on them. (U. S. Stats, at Large, Vol. 16, p. 116.) 2 Ibid, Sec. 2. But this provision vras also violated, and July 1st, 1870, Con- gress legalized all locations of scrip made vrithin thirty days after the approval of the said Act of July 2d, 1862, which in other respects were in accordance therewith. (U. S. Stats, at Large, Vol. 16, p. 186.) 3U. S. Stats, at Large, Vol. 12, p. 503, Sec. 3. 4 Ibid, Sec. 4. sibid, Sec. 5. cibid, Sees. 4,5. § 5 EXCOURAGEMEXT OF AGRICULTURE. 6 one college, for the purposes above designated, or the grant to such State shall cease. ^ No State can receive the benefit of the act unless it be, by act of its legislature, bound to the pro- visions thereof by acceptance of the gi-ant and of the terms imposed.^ Special acts of Congress, affecting several of the States — and as to them modifying these general laws — have been passed. July 4th, 1866, Congress passed an act by Avhich the diversion of the proceeds from the sale of lands and scrip received under the general laws above cited, from such disbursements as were requisite for, or incident to, the teaching of agriculture and the mechanic arts, to that of the theory and practice of mining, is allowed and authorized Avithout causing a forfeiture of said grant. ^ § 5. Special provisions by acts of Congress as to agri- cultural colleges in specified States, have from tunc to time been made, adapting the general law to the special circumstances affecting such States. An act passed June 8th, 1868,* gives four years from that date within which Nevada may select the lands last above mentioned, and Sec. 4 of this act provides that the lands granted to the State of California under the Act of July 2d, 1862, and acts amendatory thereof, may be selected by that State from an}' lands Avithin her borders subject to })re-emption and sale, except mineral lands, and such as to Avhich there may be rightful home- stead or pre-emption claims ; double niininiiun lauds being taken at double rates, one acre for two. A provision as to California occurs in the Act of March 3d, 1 U. S. Stats, at Large, Vol. 12, p. 504, Sec. 5. The period.s of time have been extended as to all the States by Act of July 23d, ISfiO, Vol. 14, U. S. Stats, at Large, p. 208, so tliat the acceptance of the benefits of said Act of July 2d, 18G2, may be expressed within three years from the date of this Act of July 2od, IStid, and tlie colleges ])rovided within live years from the date of filing such accept- ance with the Commissioner of the General Land Oflice. This act also extends the benelit of the original act to new States. (Ante, Note to Sec. 3.) 2 The time herein prescrilied is also extended, (Ante, Note 1) and even before the Act of July 2:{d, IWG, by Act of Aj)ril 14th, ISCA, an extension of time was given, (U. S. Stats, at I-arge, A'ol. 13, p. 47) but the last extension is more general, and covers the whole ground. 8 U. S. Stats, at Large, Vol. 14, p. 85, Sec. 3. * Ibid, Vol. 15, p. 07. 7 ENCOURAGEMENT OF AGRICULTURE. § 6 1871/ relating, by its title, to the State of Nevada. By this act, it is permitted to the State of California to make selections, also, upon unsurveyed public lands, by making application to the Surveyor-General for their survey, and paying therefor. If there be no appropriation available for such surveys, the Sur- veyor-General, upon such application, must make the surveys and file the plats In the appropriate land offices, and thereafter the State has thirty days wherein to perfect Its applications, and for that length of time there can be received no application other than that of the State for the land so surveyed, provided, however, that no valid pre-emption or homestead rights shall be thereby Impaired. March 16th, 1872, another act gave to Nevada until May 10th, 1877, within which to avail itself of the benefits of the Act of July 2d, 1862, and acts amendatory thereof, provided that by that date one college be provided by said State.^ Oregon has a special act by which It may select, in satisfac- tion of the grant by Act of July 2d, 1862, any land within that State subject to pre-emption and homestead entry, and which also confirms selections already made, except where they may conflict with valid pre-emption or homestead claims, and further providing that this State shall not, on this grant, receive more than 90,000 acres.^ Arkansas having complied with the provisions of the Act of July 2d, 1862, and the acts amendatory thereto. Congress, Dec. 13th, 1872, directed the Secretary of the Interior to issue and " deliver to the Secretary of State of Arkansas the full amount of college scrip, to wit, 150,000 acres, and 90,000 acres to the Secretary of the Board of Trustees of the Florida State Agri- cultural College of the State of Florida, as provided for in said act, to be used and appropriated to and for the purposes and objects In said act specified, and none other: Provided, that no scrip as aforesaid shall be delivered to the authorities of the State of Arkansas until said State shall have made some satis- factory arrangement by which the bonds of said State, principal and interest, now held by the United States as Indian Trust Funds, shall be funded in new bonds authorized to be issued by said State for this purpose. 1 U. S. stats, at L. Vol. IG, p. 581. 2 ibid, Vol. 17, p. 40. 3 i^id, Vol. 17, p. 217. § 5 ENCOURAGEMEXT OF AGRICULTURE. 8 Indiana is permitted to comply with and receive the benefits of said general law at any time prior to July 1st, 1874.^ And on the 26th of January, 1873, a general act gave to each of the States which had not had the benefit of the said law of July 2d, 1862, and the acts amendatory thereto, until July 1st, 1874, to accept and receive such benefits upon compli- ance with the provisions thei-cin contained and hereinbefore mentioned.^ The foregoing is a summary of this important legislation : by its terms sufficient means are provided to take the first step toward the endowment of at least one college devoted to agri- culture and the mechanic arts in each of the States.^ Corresponding State laws have been passed, the grant ac- cepted, and provision has been made for the designated colleges in many of the States. The questions, how far the conditions of the grants, and their acceptance by the respective States, bind the recipients to an exact performance of them ; to what extent, if any, material departures from these terms invalidate the titles derived under these National and State laws, are very seductive ; but consid- eration of them would lead us away from The Law of the Farm. 1 U. S. stats, at Large, Vol. 17, p. 397. 2 Ibid, 416. 8 In the title to this act the word " Territories " occurs in such connection as to intimate that they are, with States, to receive the benefit of the law ; but infer- entially they are excluded by the terms of the act, in the provision that tlie quantity of the land shall depend uiion the number of senators and members of the lower house of Congress. Territories have no senators or rt'i)rescntatives in Congress, witliin the strict acceptation of the term, and do not appear to be able to determine thereby tlie quantity of land to which they are entitled. (U. S. Stats, at Large, Vol 12, p. 503, Sec. 1.) July 23d, 18(3(j, an act passed Congress which extended the donation to States which had been admitted after the passage of the Act of July 2d, 18()2, provided such new State should, by legal enactment, within three years from the date of its admission, accept the trust, and provide for the college within live years thereafter. (U. S. Stats, at Large, Vol. 14, p. 208.) AGEICULTURAL SOCIETIES. §§ G-7 CHAPTER II. AGRICULTURAL SOCIETIES. § 6. The United States Agricultural Society. § 7. Statutes concerning agrlculttiral societies. § 8. Agricultural societies in certain States. § 9. State laws as to agricultural societies. § 10. Statutes affecting agricultural societies. § 11. Statutes in certain States concerning agricultural societies. § 12. Summary of legislation for agricultural societies. § 13. Police powers by agricultural societies. § M. General laws as to corporations affecting agricultural societies. § 6. The United States Agricultural Society. — The Gen- eral Government lias, in at least one instance, by the act to in- corporate the United States Agricultural Society,^ recognized the value of such associations, and by the grant of sj)ccial cor- porate powers to a society of individuals under the name of " The United States Agricultural Society," has enabled it to exercise all of the power of incorporations, to own property, sue and be sued, receive gifts and bequests, and elect officers to control its affairs and carry out its purposes. By the provisions of the act of Congress creating this corporation, any person may become a member by j)aying into the hands of the appropriate and designated officer the fees of membership which may be prescribed in the company's by-laws ; and provisions for the cre- ation and maintenance of honorary memberships manifest the high esteem in which such an association was held in the minds of the legislators who made the law. § 7. Statutes concerning agricultural societies. — Ala- bama, by Act of March 3d, 1870,^ providing for the incorpora- tion of agricultural societies, prescribes the mode of procedure, and gives to them the usual powers and privileges of corpora- 1 U. S. stats, at Large, Vol. 12, pp. 12, 13. 2 Stats, of Alabama, 1809-70, p. 308. § 7 AGRICULTURAL SOCIETIES. 10 tions under the laws of that State ; and " for the purposes of encouraging, stimulating, and furthering the mineral, agricul- tural, and other resources of the State of Alabama, all build- ings, factories, works, and machinery in j)rocess of erection or heretofore erected and used, from and after the 1st day of Jan- uary, A. D. 1873," for the purpose of refining cotton, wool, to- gether with divers other products of the mineral resources of the State, are exempt from taxation.^ California, by Act of May 13th, 1859, and amendments thereto,^ has established the State Agricultural Society of Cal- ifornia, given to it corporate powers, the right to hold real estate, establish a model farm, etc., and exempted all its funds from seizure for debt except such as have accrued during the year wltliin which, by appropriations or donations, such funds have been received. March 12th, 1859,^ a general act for the formation of agricultural societies Avas passed, and by the re- vision of the laws, 18T1— 2,'* provision is also made therefor, by which they are permitted to hold or lease real property to an extent in area of IGO acres, to hold fairs and otherwise encour- age agriculture, horticulture, improvement of breeds of horses, cattle, etc. Such corporations must not incur any debt in excess of funds on hand, other than to mortgage its lands to an amount not to exceed $5,000 ; and any directors who vote for the incur- ring any debt other or further than as last above mentioned, are personally liable therefor. These societies ai'c, by the law, de- clared to be instituted and conducted not for profit ; they are to have no capital stock or income other than sucli as results from charges for exhibiting at tlicir fairs, together Avith fees for mcm- bcrslu}) ; and such fees must never be greater than to raise a sufHcicnt revenue to discharge the deljt for tlie real estate and the iiiii)i'<)vemcnts thereon, and to defray the current expenses of fairs. Colorado, on the 9th day of February, 1872,^ finding that the Colorado Territorial Agricultural Society was in debt to the amount of .$10,000, provided for the assumption of this debt by 1 Stats, of Alabama, 1872-:i, p. 72. 2Hitte]l, p. 52, 127.5. 3 T\m\, \ 2<^1. 4 Civil Code of California, Sees. 28f!, 020-022. 6 Laws of Colorado, Ninth Sess. p. 54. 11 AGRICULTURAL SOCIETIES. § 8 said territory, the society securing the territory by proper deed of trust of its property, and also validated and gave effect to the proceedings of the lioard of directors. Connecticut ^ has, by its laws, ordained that every incorporated county agricultural society, which shall liave raised by contri- bution or tax upon individuals filOO or more, shall receive from the State, in September or October, in each year, a sum equal to the amount raised by the society, not to exceed, however, $200, the total amount to be applied to giving premiums for the encouragement of agriculture, etc. The State Board of Agriculture,^ composed of the governor, one person appointed by each county agricultural society, and four other persons appointed by the governor, meets once, at least, each year, each member being entitled to compensation for his services at the rate of $S per day ; and it is the duty of the board to investigate such subjects relating to Improvement in agriculture and hoi'tlculturc, and have control over all bequests or donations made for the promotion of agricultural education ; to receive reports from the county societies ; and therefrom, and fi"om such other sources as can be commanded annually, to pre- pare a report of the same, in a volume not to exceed 250 pages ; the expenses of the board to be paid by the State. The original law appropriating to county societies has been so amended^ as to establish a sliding scale of State donations, so varying the amount as that each society which raises $300 shall receive from the State that sum ; those which raise respectively $200 or $100 shall have similar amounts. § 8. Agricultural societies in certain States. — Delaware has taken a singular position in providing, by her general police act, that public fairs are abolished and prohibited within that State, and such exhibitions are classed Avith horse-racing, cock- fighting, and other disreputable shows.^ Idaho, although not yet risen to the dignity of a State, has so far provided for this Interest as to Incorporate the Idaho Terrl- 1 Revision of 18GG, p. 143. 2 Stats of Conn. 186(3-8, p. 21). 3 Stats. 18G9, p. 345 ; IlDid, p. 2D0. * Revised Code Delaveare, 1852, pp. 141-2. § 8 AGRICULTURAL SOCIETIES. 12 torial Agricultural Society, and donate to it annually $1,000, to be disposed of in premiums.^ Illinois, in her general statute for the incorporation of socie- ties of this character,^ gives to them full corporate powers, but makes stockholders liable for debts to the full amount of sub- scriptions, and holds the trustees personally liable for all debts incurred in excess of the capital of the association. To the several county agricultural societies is also accorded police powers at their fairs and exhibitions, and if incorporated they are exempt from taxation. In Indiana, all proceeds from licenses to menageries, circuses, and similar shows, are devoted to the several county agricultural societies,^ but the society must raise an equal amount by sub- scription oi' fees ; all to be devoted t-o award of premiums. The county society must so regulate awards of premiums as that it shall be competent for persons who farm on a small scale, as well as large farmers, to compete therefor, and must do all in their power to encourage such competition as shall tend to de- velop the best modes of tillage, raising crops, improving the soil, etc., in all of which the Indiana State Board of Agriculture shall give its aid, encouragement, and concurrence, by holding State fairs, and in such other modes as may be available. Subsequent legislation permits the societies to hold and dis- pose of real ])roperty, assume liabilities, and makes the presi- dents of the several county societies ex-officio members of the State Board of Agriculture,^ and exempts from taxation all property of said State board. Iowa has classed agricultural societies with corporations for the establishment of seminaries of learning, churches, and other associations not created for pecuniary profit.^ All county societies must so conduct their business, in the mat- ter of awards, as that it may be competent for small as well as large farmers to contend therefor, and an amount, not to ex- ceed $200 annually, is donated by the State, a corresponding iLaws of Idaho, Third Session, p. 198; Id. Fifth Session, p. 131. 2 Stats, of ni. Vol. 1, p. 12G. 3 Stats, of Ind. Vol. 1, p. GO. ■» Ibid, Vol. .% pp. 3-0. ^ Laws of Iowa, Revision of 18C0, \t. 201. 13 AGRICULTURAL SOCIETIES. § 9 sum to be raised by the society ; to tlie Iowa State Agricultural Society is by the State annually appropi'iated $2,000. The county judge of each county may, by a vote of a majority of the qualified electors thereof, be authorized to subscribe, for and in the name of the county, to the stock of the County Agricul- tural Society to an amount not to exceed $1,000, and not to ex- ceed 8500 in counties whose population is less than four thousand people.^ The property of such societies is exempt from taxa- tion,^ and a further act gives to the supervisors of each county power to donate of the county funds to the respective county ag- ricultural society a sum not exceeding $100 for each thousand in- habitants, provided the society owns at least ten acres of land ; ^ and whenever any county society has raised any sum of money for actual membership, they shall receive from the State an equal amount, not to exceed $200. § 9. State laws as to agricultural societies. — Kansas has provisions similar in effect to those last above mentioned, in that, by her laws, county and State aid is extended to the sev- eral agricultural societies,^ the substantial diifcrcnce being only in the mode of taxation prescribed for raising the money by taxation at a stated rate of assessment on the property Avithin the county. Corporations of this character need not "list for taxation as part of their capital stock the value of their lands, but said lands shall be assessed as real property as other lands are assessed." The president of each county society is ex- officio a member of the State Board of Agriculture, and when any such county society has raised $50, it shall receive from the State $200 to aid in their work.^ In Kentucky, the State Agricultural Society is incorporated,^ and annual appropriations by the State provide for its support. In Maine, the State Board of Agriculture is composed of the governor, with five members appointed by him, two at least of whom must be from the faculty of the State College of Agricul- 1 Stats, of Iowa, Revision of 1860, p. 299. 2 Id. Sec. 711, Stats. 1862, p. 33. 3 Laws of 1866, p. 137; Laws of 1868, p. 175. 4 Laws of Kansas, 1868, p. 72; Stats. 1870, p. 46; Laws of 1S71, p. 67. 5 Stats. 1872, p. 49, Sec. 8. 6 Revised Stats, of Kentucky, Vol. 2, p. 550. § 10 AGRICULTURAL SOCIETIES. 14 ture and Mechanic Arts, and one delegate elected by the State Agrlcnltural Society, and one by each of the several county agricultural societies. This board holds two sessions each year, and all expenses are borne by the State, but no member re- ceives any pay.^ The State Agricultural Society may hold personal and real estate, the annual income from which shall not exceed $5,000. County and local agricultural societies may also hold property, the annual income of Avhich does not exceed $3,000, and each year i-eceive from the State a donation to an amount equal to what has been raised by the society during the preceding year, " but not exceeding one cent to each inhabitant of the county, the amount so raised and donated to be devoted to granting premiums and giving encouragement to agriculture, horticulture, etc. Each society must require of all competitors for such pre- miums, either on animals, crops, dairy products, improvements of soils or manures, a full and accurate statement of the process or method of rearing, managing, producing, and accomplishing the same, together with its cost and value." § 10. Statutes affecting agricultural societies. — In Mary- land, seven or more persons may form themselves into an agri- cultural association with corporate powers." Such society can hold property to any amount not to exceed $50,000, or from which is derived an annual income not exceeding $4,000. ^ To several of the county societies,.in 1872, there was granted an annual special donation by the State ; and a general hnv gives to each county society by the State, annually, an amount equal to that raised by the society. Massachusetts has laws by which each county agricultural society, which has raised and invested $1,000, annually receives from the State $200 ; ^ but no society can receive, any year, more than it has distributed in j)remiums the preceding year. A State Board of Agriculture exists, substantially resembling that of IMaine.^ 1 Rftvisfd Stats, of Maine, 1871, p. 478. 2 fk-nl. Stats, of ISIaryland, 18(10, p. 149. 3 Stats. 1872, p. 4IJ2. * Genl. Stats, of Mass. 18(J0, p. ?,7C, ; Sniiplcmont of 18C7-71, p. 821. 6 Genl. Stats, of Mass. 18(;0, p. 141. 15 AGRICULTURAL SOCIETIES. § 11 IMichigan ^ has hj law provided for tlie Michigan State Agri- cultural Society, and prescribed, among other things, that any compctitoi'S for premiums shall give full data as to soil, manures used, results obtained, etc. ; and that to each county society shall annually be given the result of a special tax upon all property in the county, provided the society raises $100 or more, the whole to be expended in award of premiums, and the diffusion of information specially relating to agricultural pursuits. Such agricultural societies may hold pi'operty, not to exceed in value specified amounts for county, city, town, or village societies, which shall be exempt from taxation. JVIinnesota, by general law, gives to agricultural societies power to become corporations, and specially provides for the formation of State and county agricultural societies,^ but ac- cords no special privileges. Missouri has a State Board of Agriculture ; ^ also county ag- ricultural societies. The County Court may, by order, donate of the funds of the county $150 per year to such county socie- ties, to be used in award of premiums, etc. § 11. Laws in certain States concerning agricultural societies. — In New York, by statute,^ local agricultural socie- ties may be formed, with corporate powers and police regula- tions to govern their exhibitions. Any person who chooses to pay annually to the society not less than fifty cents, or more than one dollar, can become a stockholder, with all rights and privileges as such ; and any person who pays ten dollars be- comes a life member. The lands of such societies are exempt from taxation, and upon such associations is imposed the duty of obtaining and disseminating useful information on topics ger- main to agriculture. Whenever a county society shall have raised, for the purposes of its organization, any sum of money not exceeding the amount under the general provision to which such society is limited, such amount so raised by the society is to be duplicated by the State.^ 1 Compiled Laws of Michigan, 1871, p. 703, et seq. 2 Stats, at Large of Minnesota, Vol. 1, p. 452 ; Ibid, 466. 8 Wagner's Stats, of Missouri, Vol 1, p. 126, et seq. 4 Genl. Stats. N. Y. Vol. 3, p. 761 et seq. 5 Ibid, p. 760 et seq. § 11 AGRICULTURAL SOCIETIES. 16 Similar provisions, so far as general characteristics go, arc made for societies for improving the breed of horses, etc. Subsequent statutes make detailed applications of these laws.^ Ohio^ has made provision in this behalf, so that county or dis- trict agricultural societies shall have, from the respective coun- ties, to them donated an auKumt erpialing such sums as the societies may raise by contribution, donations, or fees exacted : provided, that, to raise by taxation such amount to be donated, the property in the respective counties shall not be assessed, shall not exceed half a cent to each inhabitant, and the total amount not to exceed annually two hundred dollars. The several societies must annually offer and award pre- miums for the improvement of soils, tillage, crops, manures, etc., in such manner that small as well as large farmers may compete therefor. The county commissioners of the several counties are authorized to aid local agricultural societies in pur- chase of appropriate real property. In Tennessee, an "Agricultural Bureau " of the State govern- ment exists,^ composed of the governor, and six members appointed by the governor, and one delegate from each county agricultural society. The county societies in each " grand division " of the State are to hold fairs, award premiums, etc. ; and to each of the three grand divisions, viz., the eastern, middle, and western division, is donated annually one thousand dollars, and to each county society is awarded annually two hundred dollars. Wisconsin has a State Agricultural Society, which is, under the law, a corporation. County societies are also provided for, with corporate powers, and the usual privileges as to conduct of all exhibitions, fairs, etc. ; the State donates annually to each of the county societies one hundred dollars, and in addition theret(^ the board of county supervisors of each county may annually cause to be levied a tax sufficient to x'aise a fund of foiii- liiiiier to insert it in his deed. Per (Jhief .Justice .lohuson, page 14. 2 Saclmer v. Ilex, 20 Penu. St. (8 Harris) Vh. 25 CROPS. § 19 ■\;iluc of this rule, said : " This was trespass for cutting and car- rying away certain grain, which the phiintiff alleged to be his ; one of the exceptions taken is to the admission of evidence, which went to show that when he sold his land to defendant it was dis- tinctly agreed that the growing crop of grain thereon should be reserved, and not pass with the land. The scrivener testified that both parties told him to insert this, and, finding he had not done so, requested him to interline it, but afterward agreed that it need not be done, since, as they knew it themselves, it was not necessary. The grain belonged to the vendor. The vendee had not bought it, and would not have it. " To confine a party to the terms of a written agreement, from which an important part of the actual bargain is omitted at the request of the other party, and on his solemn assurance that it shall be performed, though not inserted, is such a fraud as the jurisprudence of no civilized country will tolerate. "The evidence was admissible beyond a doubt. The vendor was entitled to relief in equity, though not, perhaps, under the head of mistake."^ By the Supreme Court of Ohio ^ it was held that a growing 1 The Court was not of equity, or trying a chancery case to reform the deed. The simple deduction to be drawn from tlie Language is that a reservation of the growing crop from tlie sale of the land miglit be made in jiarol, because the legal proposition must stand on its own merits, apart from any consideration of pecu- liar hardship or special circumstances affecting the indiAndual case under review. - Baker v. Jordan, 3 Ohio St. 438. Tliis case is, in several respects, at apparent variance with the rule mentioned in the text, and with the general current of au- thorities. The distinguished jurist who wrote the oi^inion (Warden, J.) declares the law to be : "That growing crops will pass by common deed of the lands whereon they grow, when no valid conversion of them into personalty is sho'WTi to have preceded the conveyance, cannot be doubted ; but whether such convey- ance ahoays inirports to carry the title to growing crops is another question. jMany things may be in or upon the ground wlien a deed is made, which the parties do not intend, and which no inflexible rule of law requires, to fall under the con- veyance. Such things are realty or personalty according to the intention of the parties. "Where the vendor had allowed his tenant to put uiion the land buildings and fixtures, under an agreement that he might remove tliem, would a deed to a stranger jiurport to convey them ? Why not, then, construe the deed, in all cases, to be a conveyance of the buildings, and why admit proof to show that the buildings did not pass, unless it is that such proof does not vary, enlarge, diminisli, or contradict the deed ? "When we consider the case of a parol sale of growing crops to A, and a sub- sequent deed of the land to Ij, we must allow that proof of such sale, and notice of its having been given to B when he took liis deed, would establish satisfac- § 20 CROPS. 2G crop iniiilit, by parol, be reserved from the oi^eration of the deed ; that it Avas personal property, although for some pur- poses regarded as a part of the realty, and that, in construing the deed, the parol understanding of the parties that the crop was reserved by the vendor will be regarded and enforced, not- withstanding the fact that the deed is absolute on its face ; that the evidence of such a parol agreement is not a contradiction of the deed, but is consistent with it, and shows that what would, in some instances, go with the land under the conveyance, was by the will of the parties converted into personalty. § 20. The rule that reservations must be in writing questioned. — Ivcgarding these decisions, and viewing the prop- osition from the stand-point of this exhaustive reasoner, the value of the rule, that the reservation of the crops from the operation of the deed must be in writing, does not remain so great as at the first glance it appears. Conceding that the growing crop can be sold necessarily ad- mits that the purchaser may — must — allow it to mature upon the land ; he cannot prevent a sale of the realty, and the pur- chaser does not necessarily know that the crop is sold. Many, if not most, of the later decisions meet this difficulty fairly by regarding the growing crops as personal property, sub- ject only in effect to the laws controlling the disposition of that class of property, and freed from the necessity of treating them as real property, or governed by the laws affecting estates or in- terests in land.^ torily that the parties to tho docd never intended to treat the crop as part of the realty, or within tlie conveyance. Docs the evidence of sucli intention vary or contradict the det.'d ? I think not. "However little favor should he shown to parol reservations made by the vendor, there must be some which are valid. It is, in such instances, a question of intent. ^Vhere that intent relates to things which may sometimes be treated as realty, and sometimes as personalty, the evidence of its manifestation in the conduct of the parties, or in their words at the date of the deed, does not seem to alter, enlarge, or limit their written contract ; for, as already observed, that contract does not necessarily embrace such things." 1 In IJricker v. Hughes, 4 Ind. 14G, it was held that growing crops were per- Bonal property, even before maturity, as such could be sold ; and the sale did not, necessarily, involve an interest in realty requiring a written agreement. In Frank v. Harrington, :{1 IJarb. 415, hops growing and maturing on the vines are decided to be personal jiroperty, which may be sold by parol. In this case, the point was distinctly made that tlioy were of the nature of realty, because. 27 CROPS. §§ 21-22 § 21. Mortgaging of land, on which are growing crops, incidcntiilly raises, as to the crop, the proposition last above considered, with such additional side issues as distinguish mort- gages from absolute conveyances. The reasoning in Baker v. Jordan, Ante, Sec. 19, is not necessarily applicable, as the mort- gage may have been made before the crop Avas put in, and in such event there would probably be no understanding whatever as to it by the parties. The general tenor of the rulings of the Courts has been that a mortgage binds, not only the land, but the crops, while grow- ing on it, and a person purchasing the premises under a fore- closure sale is entitled to the crops which may be grown thereon at the time of the sale ; ^ that not only the land stands as security for the money loaned, but also the crops grown thereon until they are severed from the soil.^ If the mortgagor put in a crop on the mortgaged premises, he does it with full knowledge of the fact that the land, v/ith the crop, is liable to be sold if the decree should be obtained before the crop is harvested, but the mortgagor is not necessarily injured ; theoretically, upon the assumption that at the sale full value is realized from the disposition of the property ; the crop, as well as the land, brings its price, and the crop is thereby paid for.^ § 22. The tenant upon mortgaged land may lose his crop ; he takes a peculiar risk, as his growing crop may en- hance the value of the security without benefiting him ; gener- ally the Courts have held that where a mortgagor leases his farm the lessee has no right to crops growing thereon at the time of foreclosure and sale under the mort2;ao:e, and the mortgiisee, or any other purchaser at such sale, may maintain trespass against the lessee for taking and carrying away the crops.* the roots and substance being of the earth, the product could only be considered as an incident or appurtenant to the land ; but the ruling was dii-ect, and con- tradicted this proposition upon the reasoning that the value of the crop de- pended on the labor, poles, and manure bestowed by the grower. 1 Shepherd v. Philbrick, 2 Denio, 174. 2 Gilbert v. Balcom, 6 Barb. 370 ; Jones v. Thomas, 8 Blackf. 428. 8 Crews V. Pendleton, 1 Leigh, 297, 305-. *Lane v. King, 8 Wend. 584. In December, 1827, Lampman executed a mort- gage on his farm to King, to secure the payment of 81,300, of which $'250 was § 23 CROPS. 28 § 23. The tenant cannot be protected against a mort- gage on the land made before tlie lease ; there apj^ears to be no way by whieh he can with safety raise a crop on mortgaged land, as the mortgagor cannot lease the land so as to protect the growing crop from the mortgage. The general rule, as above indicated, is that a mortgagor, whether in possession of the premises or not, cannot make a lease so far binding upon the mortgagee as to secure to the ten- ant the crop which is growing on the land Avhen the foreclosure sale is made.^ The leading case upon this topic is that of Kcech V. Hall,^ in which Lord Mansfield reviews the Avhole subject, and gives his opinion in the following language : "The mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgage. " Whoever Avants to be secure when he takes a lease should inquire after and examine the title deeds." In the same case, however, it Is said, by the same learned judge, that, if the mortgagee had encouraged the tenant to lay out money, he could not maintain his action against him for con- version of the crop which was growing on the land at the time of the sale. A settled modification of the rule, consistent with justice, appears to exist to the extent that if the mortgagee so encour- age a third party as to induce him to put in the crop, or even to assent to his doing so without notifying tlie tenant that he will, to be paid within one year, and the residue in four equal annvial installments. In June, 1820, Lamiiraan let part of the farm to Lane, for the term of two years, at the yearly rental of 835 ; Lane to be entitled to the grain in tlio ground at the expiration of the lease. September 2;)d, 182!), King liled his bill to foreclose the mortgage, not making Lane a partj'', and obtained an order of sale in December, 1820, under whicli the premises were sold ; the mortgagee, King, became the purchaser, and took possession. At tliis time there was a croii of rye on the laud, which Lane had put in under his lease, and when this grain was lit to liarvest, lie cut and carried it away. Thereupon, King sued Lane for the value of the rj-e, and, under the instructions of tlie Court, recovered. On appeal, this judgment was affirmed, on the ground that the lessee of a mortgagor is not, as against the purchaser at foreclosure sale, entitled to the growing crops ; that, as between the lessee of the mortgagor and the mortgagee, or tlie ])urcliaser under his foreclosure sale, there is no privity of contract or es- tate, and the lessee is not (!ven entitled to notice to quit from tlie mortgagee on such ])urchase at the foreclosure sale. 1 Llilliard on Mortgages, Vol. 1, ji. 103. - 1 IXiug. p. 21. 29 ■ CEOPS. § 24 if he get the land, claim the crop, tlicn and in such event he ■will not he permitted to take it upon his foreclosure sale ; ^ but how far a third party purchasing at the sale would be bound by such encouragement, permission, or consent, is questionable. § 24. Levy of process upon grooving crops. — Distress, attachment, and execution may be made or levied upon growing crops, in accordance with the statutes of the several States. Everything produced by annual planting, cultivation, or labor is liable to distress for rent, (where distress is allowed) and may be taken, and upon due process sold on execution, ^ even when crrowinsi: and immature.^ In such taking, the sheriff may wait until the crop is ripe, and then cut and carry it away^ and sell it ; but, except where by statute he is expressly required so to do,'^ he need not wait. 1 Condon v. Sanford, Hill & Den. lOfi. In this case, it was held that wliore, before foreclosure, the mortgagor leased the land, on shares, to a third party, and the mortgagee assented to this arrangement, the x'lurchaser at foreclosure sale could not maintain the action against the tenant of replevin for the crops. The Court herein also reviews the subject of the admissibility of parol evidence to show the knowledge of the mortgagee of the terms of this letting of the land upon the husbandry contract mentioned, of liis assent to the same, and of his agreement that the mortgage should not affect the rights of the grower of the crop in the jiremises. The gi'ound covered by and the conclusions arrived at are the same as in Ba- ker V. Jordan, Ante, Sec 19, wherein Judge "Warden, in giving the opinion of the Court, declares that such evidence is not of a character to enlarge, limit, or vary the terms of the written instrument, and is, therefore, not subject to the objection made thereto that the -v^Titing being silent as to the matter of growing crop, the presumption should be that it was intentionally omitted ; that the growing crop is but personalty is also more than hinted at, and the opinion is much influenced by that view. In Whipi^le v. Foote, 2 Johns. 218, it is asserted that wheat, grox^ing. is a chattel, and — if raised upon the land of another, pursuant to an agreement with him and the defendant — may be levied on and sold under an exectition against the latter. 2 Gwinne on Sheriffs, 220 ; Crocker on Sheriffs, 207. 3 Stewart v. Dougherty, 9 Johns. 108; McKenzie v. Lamley, 31 Ala. 52G; Pen- hallow V. Dwight, 7 Mass. 34. In the decision of which the Court says that corn and any other product of the soil, raised annually, by labor and cultivation, is personal estate, and may be taken in execution while standing in the field, if ripe and fit to be gathered. 4 As in the Statutes of Minnesota, 1873, p. 829, special provision is made as follows: "A levy may be made on grain or grass while growing, and upon any other unharvested crop, but no sale thereof shall be made under such levy until the same is ripe and tit to be harv^ested, and any levy thereon by virtue of an execution shall be continued beyond the return-day thereof, if necessary, and § 25 CROPS. 30 but may t^oll tlie crop as it stands, before it is matured or sev- ered from the ground.^ § 25. Fmctus naturales and fructus industriales. — GroAving grass, trees, and other spontaneous growths are not regarded as chattels, or liable to seizure : they are sharjdy dis- tinguished from growing crops. The latter are said to be chat- tels ; they go, on the death of the owner, to the executor, and during the lifetime of the owner, may be taken in execution as chattels. In a Xew York case, where liops growing on the vines are declared to be personal property, it is admitted that they approach very near to that class of productions which can only be treated as realty, that is to say, the finiit from trees, shrubs,^ etc. AVith regard to fructus nati/rales, the established rule ap- pears to be that not only grass, trees, and the other spontane- ous yield of the soil are to be considered to be a part of the realty, but also the crop from such trees or other fruit-bearing plants : they are parcel of the realty, must be sold as such, and the levy of an execution is Aoid when, and so far as. made upon trees and annual productions of the earth, as clover, timothy, sponta- neous grasses, apples, pears, and peaches, while ungathered, or yet growing ; these are all regarded as incident to the land. Growing trees are the subjects of grant and conveyance by deed, as something of which wc predicate freehold and inheritiince, remain in life, and the execution thereof may he completed at any time within thirty days after such grain, grass, or other unharvested crop is ripe, or lit to be harvested." 1 Craddock v. Eiddlesberger, 2 Dana, 205. '"The authorities leave no pretext for doubting that growing corn is a chattel, and may be sold as such by the ownier, or taken by an officer in virtue of a process of Jicri facias." The oidy doubt which has been intimated is as to the proper time of selling imder an execution. " But tliough some have expressed tlic opinion that the sale should be postponed until after tlie crop shall have become mature and been severed from the ground, it seems that, prior to an act of the last legislature, (of Kentucky) the l.iw conceded the riglit to sell the corn in the condition in which it was when the execution was levied on it. " The right to levy implies the right to sell as soon as legal notice can be given. Was it tlie duty of the officer to keep possession cif growing corn for montlis after liis h\-y, and in the meantime to cultivate and gather it, or be responsible for its loss or deterioration ?" - Frank i-. Harrington, 31 Barb. -115 ; Evans v. Kobcrts, 5 Barnwell &: Cres- well, 829. 31 CROPS. § 25 even thougli no right in tlio soil on which they are standing, passes, thorebv, beyond that of having them stand thereon and (U-rive nntrinient therefrom till they are severed.^ In Inmk v. C'ary,- the facts presented the (puv^tion whether grass growing on land covdd be levied on, as a chattel, under an execution against the owner of the land, when It was turned out by defendant to be so taken, or when such levy is made by and with the consent of the defendant, the owner of the hnid ; and It was held that properly it could not. The distinction is clearly marked between growing crops which owe their existence to the labor, care, and fei'tilization be- stowed on them by the ]>roducer, and growing trees, fruit, grass, and the other natural products of the earth which grow spon- taneously and without eidtivation. Just hoAv far trees and fruit-bearing jdants, Avhlch are purely the result of skill and labor, manure anil care, come under the rule that they are of the realty, is not well established. All the older standard authorities declare them to be so, but the reason of the nice distinction does not appear, and in the statute law of at least one of the States the converse of the proposition is recognized, so far as nursery trees arc concerned ; ^ but here occurs a peculiar reason for distinguishing such from other trees, in that, like crops, they owe their value to the labor and skill, etc., of the nurseryman.^ iGwinne on Sheriffs, p. 220; Crocker on Sheriffs, p. 207 ; Toll. Law of Exrs. 192 ; 3 Bae. Abr. G4. 2 1 Barb. 542 ; 2 Black. Com. 122-3. 8 Civil Code of California, p. 501, Sec. 2058: it is declared that all growing crops, nursery trees, and other anticipated products, are personal jiroperty. * A. L. J. Jan. 29th, ISTC, p. 70. " A parol agreement for the sale of growing trees, the trees to be severed and taken from the land by the vendee, will amount to a license for the vendee to enter upon the vendor's land for the purpose of making such severance ; and if the license lie not revoked before tlie trees are severed, the title to the trees will vest in the vendee, and the license, after such severance, will become coupled with an interest, and irrevocable ; and the vendee will have a right to enter and remove the trees thus severed ; but if, before the trees are severed, the A^endor should i-evokc such license, no title will pass to the vendee, and no riglits will vest by virtue of such parol agreement." (Owens v. Lewis, Q! Tnd. 488.) "AVhen, in a deed of growing trees to bo removed by the grantee from the grantor's land, the terms of the grant, taken in their literal and usual sense, signify an absolute convt^yance of the title of the trees, the grant is not made a conditional one by stipulation (express or imi)lied) as to the time of removal." (Hoyt V. Strattou Mills, 54 N. II. 109.) §§ 26-27 CROPS. 32 § 26. Exemption of grooving crops from seizure. — Grow- ing crops are exempt from seizure, under distress or attachment, in Maine ^ and Vermont. ^ In Virginia, certain crops arc, and others are not, exempt, ^ and the laAv in West Virginia is similar in effect.* In Wisconsin, certain animals are free from seizure, and the statute also exempts the necessary food to feed them for one year, whether the same is grooving, or harvested and on hand, or both, as the debtor may choose, and the same provision for the support of the animals of the farm for the period of six months, occurs in the laws of Michigan. ^ By the statutes of Colorado, there is an exemption from seiz- ure of the provisions for the support of the debtor and his family for the period of six months, "either growing, or provided, or both."*^ Kentucky has a like exemption of provisions for the debtor's support, and that of his family, for the period of twelve months, including growing crops. § 27. The construction of statutes of exemption has caused much discussion in the Courts. On the one hand, it has been reasoned that human progress toward a high standard of civilization and humanity has gradually discarded from the law the system of personal indignities to which the unfortmiate debtor was subjected, and that the community is interested in "And if no time is expressly fixed, the construction generally is that the grantee has a reasonable time for removal." (Ibid, 109. ) "If the grantee, after the expiration of such reasonable time, enters and re- moves tlie trees Avhioli were absolutely conveyed to him liy the deed, he is liable, in trespass, for the entry, but not for the value of the trees." (lb. 109 ; I'lumer V. Prescott, 43 X. II. 277 ; Dame v. Dame, 38 N. H. 429. ) "An unconditional conveyance of growing trees, without the land, instantly severs them from the land, in contemplation of law, and transforms them into personal jiroperty." (Kingsley v. Holbrook, 45 N. II. 313.) J I'.y tlie revised Statutes of Maine, 1871, p. G27, all growing crops are exempt from seizure imtil severed from the land. 2 I{evised Statutes of Vermont, 18U2, p. 363, Sec. 13. 8 I5y the C'odf! of ^'irginia, p. 28(j, Sec. 32, it is provided that no growing crop, of any kind, sliall be liable to distress or le\-y, except Indian corn, which may be so taken at any time after October 15th of any year. ^ Code of West Virginia of 18C8, p. 254, Sec. 18, is in substance the same as tliat of Virginia. '' Laws of Michigan, 1871, p. 1742 et seq. 6 lievised Stats. Colorado, p. 380, Sec. 33. 33 CROPS. § 28 provision being made to guard against the causing of pauperism by taking from the family of tlie debtor all means of su})port. That from true humanitarian premises it must be deduced that these provisions for exemption from seizure of such im- plements of labor, and for support, in and pending the debtor's attempt to recuperate his financial strengtli, should be liberally construed, as far as consistent with the rights of others, in his favor ; and that even the creditor should be interested in the laws being so administered as to encourage the debtor to make efforts to regain his lost solvency.^ But, on the other hand, it is said that the owner of property is only conditionally so ; that, if he is in debt, the property is not his own, because its very possession may well be the induce- ment which has led to his being trusted, and — to the extent of his indebtedness — he holds it, morally, in trust for his creditors ; that statutes of exemption are innovations of the law for the sole benefit of the debtor ; that he alone knows his true status financially, and has in that an advantage ; and between him and the creditor, that the laws of exemption should be rigidly con- strued against the debtor, both in justice and from the public interest that capital should freely circulate, and credits be well sustained, by the law.^ From the decisions, and the general practice in the Courts, it is, however, now to be deduced, that the leaning, if there can be any in construction, is in favor of the debtor, and the con- stantly increasing leniency manifested by the statute law of the several States in this behalf, keeps even pace with the judicial humanity manifested by the Courts. § 28. Exemption is a personal right, which the debtor may waive or claim, at his election.- Although it has been held that the debtor need not designate what articles he claims to be exempt — that it is for the ofllicer iGilmanr. "Williams, 7 AVis. 329; Connaughton r. Sands, 32 Wis. 387; Allison ?'. Brookshire, 38 Tex. 199. "Statutes exempting property from attachment are remedial, and should be construed liberally in favor of the debtor." "Webster v. Cone, 45 Yt. 40. To the same effect, Kuntz v. Kinney, 33 Wis. 510. 2 Temple v. Scott, 3 INIinn. 419. 3 Bowman v. Smiley, 31 Penn. St. p. 225. Faem — 3. § 29 CHOPS. 34 to know the law, and to obey it at his periP — prudence dictates that the election should be made and the officer notified of it; such is the custom, and by the better array of authorities declared to be the law, that the claim of exemption is a per- sonal privilege of the person against whom the writ runs, and that, iii the absence of any such claim, the shcriif should levy.^ § 29. Chattel mortgages upon growing crops are in use in most, if not all, of the States, are provided for by statute, and due provision is made for the record of them. There is, however, a point of time when a chattel mortgage, or any other disposition of a crop, can be made only at some i-isk. That is, when the seed has been sown or planted, but no growth above the ground has appeared. In The Bank of Lansingburgh v. Crary,"^ Pi^igc, J., said: "I strongly incline to the opinion that a chattel mortgage can only operate on property in actual cxistf^nce at the time of its execu- tion ; that it cannot be given on the future products of real estate, and that if given one day or one week before the product of the land comes into existence, it is as inoperative as if the chat- tel mortgage had been given on a crop of grass or grain one, two, or three years previous to its production." The law as to mortgages is that whatever property, personal or real, is capable of an absolute sale, may be the subject of mortgage,"* but that which existed only in the hopes of the planter, without any visible existence at all, is not within any of the definitions of property.^ 1 Gilman v. AVilliaras, 7 Wis. 329. 2 state v. Uclogae, 9 Ind. 196. 3 1 Barbour, 551. ■» Story's Eq. Jur. Sec. 1021. 6 Con(l(3raan ?'. Smith, 41 Barb. 404. A chattel mortgage was given "of a wagon, sleigh, harness, and also all the grain growing on the lands rented, all tlio corn and potatoes now planted thereon, all the hay growing on the gi'onnd on said premises, all the fruit growing thereon, all the interest of the mortgagor in and to the butter and cheese to be made from the cows." This mortgage was attacked on the ground that a chattel mortgage could only operate upon property in existence at the time of its execution, and could not be given upon tlie future products of land. The ruling on tliis jioint was that at law a sale or mortgage of property to be acquired in the future, (the vendor or mortgagor neither liaving acquinnl tWe tliijig nor the agentof its produclionat the time of making the contract) creates no valid lien on subsisting property. I$ut, if the future acqiured property bo ilie product of the jiresent jiropcrty in the mortgagoi', as the wool growing on a flock of sheep, or the produce of a dairy farm, or anything of that character, the mortgagf! will take cfTect upon the property as soon as it comes into exist- ence, and will be perfectly binding at law. (Taylor v. Foster, 22 Ohio St. 255.) 35 CROPS. § 30 § 30. Disposal of anticipated crops. — Crops, like otlier personal property, must exist before they can be made the sub- ject o£ sale or mortgage ; this existence may be actual or poten- tial, and i*n defining a potential existence, such as will I'cnder possible a sale or mortgage, the authorities are apparently in conflict upon the matter of crops which have not yet been sowed. The standard authority in the older cases appears to be Sheppard's Touchstone, (p. 24) in which it is said that trees, grass, and corn growing and standing on the ground, fruit upon trees, and wool upon the sheep's back, may be mortgaged or sold. When the crop is growing, although not matured, it may be sold or mortfjao;ed, but when its existence has not commenced It would appear that no sale or moi'tgage could be made of it.^ Such is not only the conclusion arrived at by the Court in Kentucky in a case lately decided, but the conclusion there arrived at seems to be generally accepted.^ Under the California Code,^ however, the converse of this proposition is decided to be law, two of the five justices dis- senting. It being held that a crop not yet sowed, or for the sow- ing of which the ground had not been plowed, could be mort- "•ai>;ed.'* T- Shep. Touch. 241, Title Grant; BrowTiell v. Hawkins, 4 Barb. 401; Story on Bail. 287. 2 Hutchinson v. Ford, 9 Bush, Ky. 318. "A mortgage of a crop to be raised on a farm during a certain term jiasses no title if the crop was not sown when the mortgage was executed, and the mortgagee has no claim against the jjur- chaser of tlie croii for its value." (3 Cent. L. J. 151, IMarch 3d, 1876; Milman v. Neher, 20 Barb. 38; Brownell v. Hawkins, 4 Barb. 491; Jones v. Richardson, 10 Met. 481; Codman v. Freeman, 3 Cush. 30G.) 3 Civil Code Cal. Sec. 2955. * Arques v. "VVaston, Sup. Court, Cal. July 24, 1876: a crop was mortgaged be- fore the ground had been even plowed to sow the seed; a creditor attached, and the mortgagee replevied from the sheriff; the Court held the mortgage good, in the decision using the language following: " The point chiefly relied upon for a reversal is, that at the date of the mortgage the croj") had not even a potential existence, the ground not having been plowed or the seed sown ; and it is claimed that there can be no valid mortgage of a thing not in esse. It is conceded by counsel that if the thing has a iwtential ex- istence, as, for example, wool to be grown from sheep then belonging to the mortgagor, or butter to be thereafter produced from his cows, or a crop arising from seed already sown, '..'.ft mortgage would be valid. "The general rule undour>tedly is that a person cannot convey a thing not in esse, or in which he has no present interest. But it is quite as well settled that, if the thing has a potential existence, it may be mortgaged or hypothecated. ' If one, being a iierson, give to another all the wool he shall have for tithes the next year, this is a good grant, although none may arise ; for the tithes are poten- § 31 CROPS. 86 § 31. Crops may be moitgaged, when? — Tf the means of producing property is visible, tangible, and in the hand3 of the mortcraiior, or under hi.s control, so that some result therefrom is reasonably certain, such anticipated property may be made the subject of a chattel mortgage, as the wool growing upon a flock of sheep; the butter or cheese to be made in a stated season, the cows from which it is to be made being the proj)erty of, or in the possession of, the mortgagor, and due provision having been made for dairy- ing from them,^ and in this category may be classed growing tially in the person. * * * So one may grant all the wool of lii3 sheep for seven years; but not of the sheep which he shall thereafter purchase.' (Van Hoozer ?■. Corj', 34 Barb. 12, and authorities there cited. ) ' Land is the mother and root of all fniits. Wherefore, he that hatli 't may grant all fruits that may ari.se upon it after, and the property shall pass as soon as the fruits are extant.' (Grantham v. Hawley, Hob. R. 132.) In Van Hoozer v. Cory, Supra, the Court holds that 'the same principle is adjudged applicable to the annual crops, the fruit of the annual labor of the lessee; as if a lessor covenants that it shall be lawful for the lessee, at the expiration of the lease, to carry away the com growing on tlie premises, although by possibility there may be no com growing at tlie expiration of the lease, yet the grant is good, for the grantor had such a power in him, and the property shall pass as soon as the corn is extant.' So there may be a valid grant of the grain that a field is expected to grow. (1 Parsons on Cont. 523 N. K. ; McCarthy v. Blevins, 5 Yerg. 19.j. ) In Van Hoozer r. Cory, Supra, the grant was of the cheese expected to be made from the cows of the grantor and ' the prnducU expected to he raised upon the premises then flrmisrd to tlie (jrantor ' ; and this was held to be a valid grant. In that case, the (juestion involved here was carefully considered by the Court upon a full ex- amination of the authorities, and we are satisfied with the conclusion at which it arrived. But the same question arose in the later case of Conderman r. .Smith, 41 Barb. 404, in which the ruling in Van Hoozer v. Cory was approved ; and .Johnson, .7., in delivering the opinion of the Cotirt, said : ' Tliat case, (Van Hoozer »-. Cory) like this, was an action, by the lessor and purchaser, against a creditor of the lessee, who had taken and sold the products of the farm and dairy upon execution; and the Court held that it did not fall within the rule which prohibits the selling or mortgaging of property not in existence, or not owned by the vendor or mortgagor. It was the product of property which the vendor owned at the time, and was, as it is expressed in the books, potentially his, and, therefore, the subject of sale." On the rule established in the.se cases, the crop mortgaged to the plaintiffs had a potential existence, and the mortgage was valid. 1 Holroyd r. Marshall, 9 ,Jur. N. S. 213. In \'an Hoozer r. Cory, .":V4 Barb. 10, the case was an action for trespass, for taking and carrying away a quantity of cheese alleged to be the property of plaintiff. The defendant ju.stitied as a constable under judgment and execu- tion against Smith; on the trial it was shown that plaintiff leased to Smith a dairy-farm, with tlie cows, fixtures, and dairy implements. The lease, in addition to the usual covenants, contains the following clause: •And it is further agreed that the said S3(lO shall be paid, etc., and that all the produce and jjroducts of the farm, and cows that shall be raised and made each 37 CROPS. § 32 crops which have an actual, tangible existence ; they may be mortgaged, and when matured, or severed from the soil, the lien will ripen into actual property. § 32. Notice of chattel mortgage. — Chattel mortgages, when properly executed and recorded in the county where the property is, operate as constructive notice, both in and out of the county, of the lien of the mortgagee ; and although the property mortgaged may be in its nature movable, yet the lien may be asserted against subsequent purchasers in or out of the county, upon the theory that the record of the mortgage is con- structive notice to those who buy. The policy of permitting the lien of the mortgagee to prevail Avhere the property is removed out of the county where the lien is of record, has been much doubted, but as to that, the question is now too Avell settled to be disturbed. But it would be carrying the doctrine to an un- reasonable extent to permit liens to be created by mortgage, either in or out of the county where the parties live, or the property is situated, upon property not in esse, and a purchaser should not be required, in an investigation of the title to a crop, to go back prior to the time Avhen the property first had any existence, in order to be informed of the right of the party in possession to sell. Could this be otherwise, it does not appear how far back the year, shall be and remain the property of the lessor until the sum of $300, rent of each of said years, shall be paid." The judge, at the trial, held that, at the time of the levy and sale by defend- ant, the iilaintiff was the o-^Tier of the cheese, and gave judgment accordingly, which, on appeal, was affirmed upon the reasoning that "i^roperty must have an actual or potential existence, in order to be the subject of a sale; this doc- trine is so well settled as to have become elementary; but a thing may be the subject of a sale, although not in actual existence, if it has a potential or possi- ble existence, as the product or increase of that wliich is in existence, and the right to it when it shall come into existence is a present, A'ested right." In California, "Ah Cliong," a Chinanxan, had a lease of land whereon he was growing a crop of peanuts; to secure a debt, he gave to his creditor a mort- gage on the land, and turned over to him the possession of the premises, ujion an agreement that the creditor should harvest the crop, and pay himself. It was held that when a debtor gives a creditor i)ossession of a given crop, under an agreement that the creditor shall harvest it, and api^ly the proceeds to the pay- ment of the debt, the creditor thereby acquires a lien on the crop superior to the lien acquired by another creditor who receives from the debtor a mortgage on the crop, after the fir.st creditor has taken jiossession, and with notice of the rights of the first creditor. (Loveson v. GoUand et. al. 45 Cal. 8. ) § 33 CROPS. 38 o^vner of land might not mortgage expected crops, and by record create liens on what might never exist at all. ^ § 33. Relation of homestead exemption to growing crops. — Consideration of the exemption of the homestead from seizure and forced sale on process against the owner sug- gests the question, " how far does the exemption extend — are the growing crops protected ? " If they are to he treated as realty, the exemption extends to the crop ; but if personal prop- erty, they may be taken, notwithstanding they owe their exist- ence to the land, which is not liable. By the statutes of many of the States, a homestead of speci- fied value is exempt from seizure upon legal process ; upon issue raised as to this value, the Court proceeds to set apart to the head of the family enough of the farm, including the dwell- ing, to amount to the designated value ; Avhere no such issue is presented, the general provisions of the laAv constitute such a setting apart of the homestead to the beneficiary. This, how- ever, is not a sale : it is but a change in the character of the estate which the homestead claimant has in the land, and his status as to the crop is not changed. If the growing crop is of such a character as to be liable to seizure, the fact that it grows on the homestead works no exemption, and this whether it be 1 r.arnard v. Eaton, 2 Cush. 295. In this case, it was held that a mortgage could not apply to goods not in existence, or not capable of being identified at the time of it's execution. (Munsell v. Carew, 2 Cush. 50; Cortelew v. Lansing, 2 Caine's Cas. 200; Wilson v. Little, 2 Cons. 44;>; Bank, Etc. v. Carey, 1 IJarb. 542.) " A mortgage of a crop to be raised on a farm dui-ing a cca-tain term, passes no title if the crop was not sov»-n when the mortgage was executed, and the mortga- gee has no claim against a iiurchaser of the crop, for it or its value." (Hutchinson V. Ford, 9 Ken. r.l8. ) Probably the strongest case in point is that of Comstock v. Scales, 7 "Wis. IGO. I5y the Court — Cole, J. : " The defendant in error claimed the grain in controversy by virtue of a chattel mortgage given upon it about the time the grain was sowed and planted, and before the sanu; was up or presented the appearance of growing grain, and the Circuit Court instructed the jury, upon this point, that as soon as the grain was sown. Hatch, the tenant, could mort- gage liis half of the crop, and that the same would be held by the mortgage. This instruction we consider erroneous. In our opinion, a chattel mortgage can only operate upon property in actual existence at the time of execution, and can- not lie given, as was attempted to be done in this case, upon a crop liefore it can be said to be in <'xistence. Since the subject-matter of a chattel mortgage was not in esse at the time the mortgage was executed, there was nothing for it to operate upon." (Otis v. Sill, 8 Barb. 102.) 89 CROPS. §§ 34-35 as to the crop growing when it is set apart, or any subsequent crop.^ § 34. Statute of Frauds in sale of growing crops. — In the application of the Statute of Frauds to contracts affecting growing crops, the same difficuhies are encountered which have heretofore been considered in the matter of the sale, mortgage of, and levy upon them, and now, in addition thereto, the special restrictions imposed by the statute should be regarded. Generally, upon the question of whether growing crops are real or personal property, if by the sale thereof an interest in land does not necessarily pass, the English authorities have been singularly vacillating, and so inconsistent that it is more difficult to harmonize the decisions of the English Courts, and thence deduce a rule, than it has been to arrive at conclusions from the more practical ones rendered by the American Courts.^ It must, therefore, be left with the reader to decide upon the relative value of the decisions as they apply to such special cir- cumstances or cases as he may have under review, and gather from the decisions a rule applicable thereto. § 35. Ovrnership of crop dependent upon title to soil. — While growing, the title to crops can only be determined by showing that of the land whereon they are, and this title, under the statute, cannot be proved by parol ; ^ but it does not thence necessarily follow that, the title to the growing crop being at the outset confessed to be in the vendor, the sale of the crop is incumbered by the same necessities as to the contract of sale being in writing, mode of proof, etc. 1 Clements v. Lee, 47 Geo. 625. In this case, it was held that "ordinarily the sale of land carries with it the crop then growing on it ; but the laying aside of the homestead is not exactly a sale. It is the appropriation of the land for the benefit of the family, to the exclusion of the debts of the head, and does not carry with it the crop then growing on the land (which is often wortli more than the land itself) to the exclusion of a lien granted by the husband on such crop." 2 Browne on Statute of Frauds, Sec. 235. 8 It must always be borne in mind that the Statute of Frauds does not declare a certain class of contracts void, but simply determines that they sliall be proved in a certain way, by writing, evidence of payment of price, delivery, etc. The statute but establishes a rule of evidence. (Ibid, Sec. 115.) § 36 CKors. 40 In Emerscn v. Ilcells,^ a sale of turnips growing in rows or stitches was held to be a conveyance of an interest in land, and must be evidenced by writing. So, in Waddington v. Bristow,^ it is intimated that the antici- pated product of a lot of hop roots, from Avhich there had as yet been no sprouts above gTound, sold as hops thereafter to be harvested therefrom, and to be delivered in bales, necessarily involved tlie transfer of an interest in the land, and must be in writing. But in Warwick v. Bruce,^ a case in the Queen's Bench, where a party sold all of a certain lot of potatoes then growing, it was decided that no interest in the realty Avas involved ; and so in divers other English cases this contradiction of the cases first above cited occurs.^ The right to enter upon the land to gather the crop does not determine the character of the contract affecting the purchase of it, as is distinctly stated by Holroyd, J., in Evans v. Eoberts,^ in that it does not materially differ fit)m an ordinary license to the purchaser of a chattel to eater upon premises to remove it. The circumstance that the crop is not yet mature does not affect the character of the transaction under the Statute of Frauds. Under the ruling of Lord Ellenborough, in Warwick v. Bruce, it made no diffei-cnce whether, at the time of the sale, the pota- toes were covered with earth in the field, or in a box. And so the cases in England, passing the contradictions above noticed, indicate an approach to the general rule, in American law measurably settled by precedent, that growing crops may be regarded as personalty to the extent that is requisite to give force to the contract, and carry out the intention of the parties in the premises where the intention is manifestly to so dispose of the crop as to give to the purchaser no interest in the land. § 36. Greneral propositions as to disposal of grooving crops. — From a review oi the whole subject, it appears that this is tiie correct rule as to the application of those parts of the Statute 1 2 Taunt. 38. 2 2 I {OS. & Pull. 452. 8 2 Maule & S. 205. ■» Evans v. lloberts, 5 Bam. & Cress. 829 ; Smith v. Lirermoro, ]5ara. & Cress. 5G1 ; Sainsberg v Matthews, 4 Slees. & "SVels. 343. 6 5 Bam. & C. 829; S. C. 8 Dowl. & R. Cll. 41 CROPS. § 37 of Frauds wliicli govern contracts of tins character. "VYlierc the intention is to convey a mere chattel interest in the crop, the statute does not affect it ; but if it is the intention to give to the vendee an exclusive right to the land, for the purpose of making a profit from the use of the same, it is affected by the statute, and must be in writing, although it be true that nothing but the crop, as a chattel, Avill finally pass. "\Yhere the vendee is not to have the crop until it is harvested, notwithstanding it is sold before it is severed, and even while growing, the sale need not be in writing ; but if the property is to pass at once, and he is to be the owner while it is growing, then he has the use of the land — has, by the sale, an interest in the realty, and a verbal contract to that effect is not good.^ § 37. Prima vestura, and annual crops. — The distinction between natural products and the results from agriculture has been adopted in New York as being, in view of the diflficulties presented, a desirable starting point from which to establish some certain rule not inconsistent with the earlier decisions.^ 1 Browne on Stat, of Frauds, Sec. 249. It is to some extent a question of de- livery, and to tlie date when the crop is to be delivered ; because, as held in Foster v. Fletcher, 7 Monroe, 5M, " one person cannot be in i)ossession of the land, and another of the corn growing on it" ; and if it is agreed that the proii- erty is to vest in the purchaser, remain at his risk, etc., the intention to convey an interest in the land might be inferred. So it woidd seem that, as the right to tlie growing crop follows the right of possession of the land, as in the case where a person who had a pre-emption right to a parcel of the public domain, which right was to expire on a certain day, sowed grain, which he knew would not be iit to cut before the expiration of the time within which he might iiurchase the land, it was held that a stranger, who did buy the land, was entitled to the crop. (Eosor v. QuUls, 4 Blackf . 286. ) By a converse of reasoning, it might be true that a right to the possession of the croi? entaUed a corresponding interest in the land. Tenants have been j)revented from harvesting their crops after the expiration of the terms of their leases, because their right of possession of the land had ceased, and this has been decided to be the law, whether the lease was for money rent, or on shares in the crop. (Demi v. Bossier, 1 Penn. St. 224; Templeman v. Biddle, 1 Harring. 552.) "SVhitmarsh v. AValker, 1 Met. 313. In which the i:)laintiff bought of defendant a lot of mulberry trees while growing on defendant's land, paid a small sum, and was to take them away, and when he did so, jiay the balance ; no "v\Titten contract was made; it was held that, under the Statute of Frauds, the sale was good without writing. So in Clafflin v. Carpenter, 4 Met. 580, it was held that growing timber might be sold without writing. 2 Green v. Armstrong, 1 Denio, 550; Warren v. Leland, 2 Id. G13. So, also, in Gibbs V. Benjanain, 45 Ver. 124. § 37 CROPS. 42 The case of Green v. Armstrong was upon error to the Oneida Common Pleas, Green sued Armstrong for the breach of a verbal contract, made in January, 1838, by Avhich defend- ant sold to plaintiff a lot of basswood trees standing on defend- ant's land, plaintiff to have the privilege of cutting and carrying them away at his convenience, within twenty years ; and the Court held that an agreement for the sale of trees, at the time growing upon the land of the vendor, with a right to the vendee to enter at a future time and remove them, is an agreement for sale of an interest in lands, and must be in writing. To the same point is Putney v. Day, ^ where, in New Hamp- shire, the same ruling, in effect, was made. So, also, as to growing trees, is the rule held to be under the statute in Vennont ; and this distinction between yV^c^ws indus- ii'iales and the natural produce of the soil is now well estab- lished and generally conceded. ^ 1 Putney v. Day, 6 X. H. 430. 2Chitty on Contracts, 270-71; Jones v. Flint, 10 A. & E. 753; Eodwell v. Philips, 9 Mees. & Wei. 501, 505; Crosby v. Wardswortli, G East, G02; Liford's Case, 11 Coke, 48, 43 FERTILIZERS. §§ 38-39 CHAPTER rV. FERTILIZERS. § 38. Geneml rules as to fertilizors. § 39. Special statutes as to fertilizers. § 40. State laws concerning fertilizers. § 41. Ownership of manure made on a farm. § 42. English rule as to manure on a farm. § 43. Rule in America jis to ownership of manure. § 44. Title to manure, as between executor and heir. § 45. Title to manure on sale of farm. § 4G. Title to manure, as between landlord and tenant. § 47. Usage as to ownership of manure. § 48. Exceptions to general rules as to ownership of manure. § 49. The i-ight to collect sea-weed for manure. § 38. The law upon the subject of fertilizers has, from a (late very early in the history of jurisprudence in England, been a subject of considerable interest, and the principles involved have received judicial consideration, in the Courts of the mother country, to an extent commensurate with the importance of agricultural pursuits, and the standard of excellence to which farming has there attained. Of late years, with the closer husbandry entailed by popula- tion becoming more dense, and the value of manures being established by scientific and practical tests, legislative enact- ments and judicial construction of laws upon this subject ap- pear in the statutes, and decisions of the Courts of several of the United States. § 39. Special statutes as to fertilizers in Alabama, Georgia, Maryland, and New Hampshire : In Alabama, an " inspector of fertilizers " is appointed In' the go^'crnor ; under the inspection of this officer, and his subal- terns, all packages of commercial or prepared manures are stamped in a manner indicative of their power and value, and § 40 FERTILIZERS, 44 none can be sold unless so inspected and stamped, -vvitliont vio- lating the law and incurring a penalty of $1,000,^ Georo-ia has a statute resemblino; that of Alabama ; the' State chemist, appointed by the governor, is also " inspector of fei'- tilizcrs," and all imported and manufactured fertilizers must be by him inspected and stamped, so as to indicate their character, value, etc.; and any person who shall sell such merchandise un- stam])ed is guilty of misdemeanor.^ In Maryland, a similar officer has like duties, and he also must give analyses of manufactured, " manipulated, or imported ma- nures," and each package offered for sale must have attached thereto printed or stamped labels, truthfully showing the char- acter and value of the article, the weight of each package, with the vendor's name and place of business. If the article proves false to label, the buyer may recover the price paid, the seller is liable to indictment, and no agreement between the buyer and seller can exempt the latter from indict- ment for violation of these provisions.^ A supplemental act permits the grower of crops to pledge the crop, where the manures have been bought on credit, for the payment of the debt so created, the lien to have precedence over all others except that of the landlord for rent.^ New Hampshire has a law providing that dealers in " com- mercial " or " manufactured " manures shall label or otherwise mark each package so as truthfully to show what it is, its weight and strength, and any violation of law renders the offender liable to pay a fine of $20 for the first and §?40 for each subsequent offense.^ § 40. State laws upon the subject of fertilisers. — Xcjrtli Carolina has a statute prescribing that every ])ackagc of "commercial manure" or "manufactured guano" shall be stamped as by the laws provided, and also that the vendor shall furnish to the purchaser truthful chemical analyses of the contents of the packages. 1 Acts of Alabama, 1870-71, p. G8. 2 Code of (ioorgia, 187.'}, p. 270. 3 Maryland Code, Supplement of 1870, p. 85. ■•Il.id, p. 84. '' Law.s of New Hampshire, 18(;7-71, p. 285. 45 FERTILIZERS. § 41 Persons dcalina; in fcrtlUzcrs not marked as above required, or wlio fraudulently affix any mark or label wliieh untruthfully states the contents and character of the package sold, forfeit such manures, and render themselves i>ersonally liable for damages. Deficiency in any of the ingredients indicated by the mark or label is made a bar to the recovery of the debt created Ijy the purchase of the manure. Any person, instituting suit, can have an analysis made by the State geologist, and his certificate is presumptive evidence of the ingredients of the article sold. Several persons may unite in one such suit.^ Virginia, by statute, provides for the proper marking of all packages of fertilizers with the name of the manufacturer or dealer, his place of business, with the v/eight, value, and analy- sis of the contents of each package offered for sale. For breaking this law a penalty is imposed of one hundred dollars on the first and two hundred dollars for each subsequent offense, and the vendee may recover the price paid.^ Such are the ^-eneral features of the laws of States where the trade or business of dealing in fertilizers is governed by special statutes. In some States there are also restrictions upon non-residents from gathering, on the sea-shore, fish for manures, to be carried away, but such laws are local and of but little general value. § 41. Manure made on land belongs to owner of the soil. — Manure made upon the land, in the course of husl^andry, becomes a part of the farm, and is generally subject to the laws governing real estate. In England, from the complicated rela- tion of landlord and tenant under agricultural leases, exceptions to this rule, by local customs and peculiar circumstances, have so often occurred that the rule sometimes appears to be lost;^ but, 1 Public Laws of N". Car. 1871-72, p. 3GG-7. 2 Acts of Assembly of Virginia, 1870-71, p. 294. 3 2 Kent's Com. 348, Note 1, in -which the distingnishcd writer says: "It would seem to be the law in England for the outgoing tenant to sell or take away the manure (Roberts v. Barker, 1 Cr. & M. 809). A critical examination of the case cited develops the fact that the decision turns upon the effect of an express stipulation where there is a custom which otherwise controls. A tenant held under a lease which contained an express agreement by which he coven- anted not to sell or take away any of the manure in the fold, but should leave § 42 TERTILIZERS. 46 notwithstanding tlic multitude of qualifications and exceptions which cover it, the rule can be found underlyinf]c them. § 42. English rule as to manure made on the farm. — By the Englifih authorities, it is generally conceded that an agree- ment to cultivate lands in a husbandlike manner is an oljligation not to carry away any of the straw, dnng, or compost, but to use them for enriching the soil ; ^ and that, although under local usage the contrary might prevail as a custom, the general rule of law is svich that the manure should remain upon, and it is a part of, the realty. But the converse of this proposition has sometimes been held to be true : that there was no rule whatever in the premises, and that local custom controlled entirely. ^ But the custom must be so well established as to cause the presump- tion that the contracting parties knew of the local usage, had it in mind in making the contract, and are therefore deemed to have entered into the relation with reference to the subject- matter upon consideration, based upon the custom. it for the landlord or the succeeding tenant ; but there was in the lease no stip- ulation as to the tenant being jiaid foi* the manure. By the custom of the country, the tenant would have been bound not to sell or take away the manure, but, leaving the last year's manure on the premises, he would have been entitled to receive pay for its A-alue. It was held that an express agreement as to leaving the manure had been inserted in the MTitten lease ; that circumstances evidenced tliat the minds of the contracting parties had met, and tlie result was the written stipulation which, perforce, proved that no reliance was placed upon tlie custom ; that, therefore, the custom not being in their minds, it formed no part of the contract, and should be disregarded ; no pay was accorded for the manure. Hence it would seem that tlie local custom, rather tlian tlie law, gave the manure to the tenant; and, granted the premise that a custom was requisite to give to liim tlie manure, the law, apart from the custom, left the title with the land. But Loniar v. Armitage (Holt's cases of nisi j)rius, VM) directly controverts this case of Roberts v. Barker, and decides that where a A\Titten agreement of lease, upon a matter of this character involving a custom, does not in terms exclude the custom, such custom will prevail and rcanain in effect. In Webb v. Plummcr, 2 B. & A. 74G, the doctrine of Koberts v. Barker is sus- tained, and Leniar v. Armitage commented upon witliout approval. 1 Powlcy -•. M'alkor, 5 I). & E. .'JT.S. - In Hutton r. Warren, 1 ISI. & "\V. 4G6, it is said that the obligation to expend manure, and right to remove it, must, in every case where there is no express contract, be governed by the custom of the country; there is no rule of law on the subj(;ct irrespective of such custom; "farmers are more fit than lawyers to decide such a question." 47 rERTILTZERS. § 43 § 43, Rule in America as to ownership of manure. — In America, it is reasonably -well settled that the manure made on the farm is a part of the realty, and, upon a sale of the land, passes to the vendee under the deed. The case of Kittredge v. Woods ^ is not only a leading one, but states the doctrine now prevailing throughout the United States, with certain rare exceptions. The action was trespass, for breaking and entering plaintiff's close and carrying away forty loads of manure. It appeared, on the trial, that the plaintiff was tenant of the farm, where the manure was made by cattle about the farm, in 1823. In 1824, plaintiff purchased one-half of the farm, and defendant the other half, and these parties held it in common until the 6th of April, 1824, Avlien they divided, and defendant conveyed to plaintiff all of his interest in the part of the farm where the said manure was. Afterward, defendant entered and took away one-half of the manure, and thereupon the controversy arose, and the sole question involved was, " whether, when land is sold and con- veyed without any reservation, manure lying upon it goes to vendee with the land ? " The learned judge who wrote the opinion (Richardson, C. J.) says: "As we find no adjudged case in which this question has been directly settled, we shall, in order to avail ourselves of the light which analogous cases offer, take a broader view of the subject than the relation between the vendor and vendee presents. Many things which are not affixed to the freehold go to the heir as appurtenances to the inheritance. Thus, it is said that young doves in a dove-house, not able to fly, belong to the executor. But the old doves go, with the dove-house, to the heir. (Wentworth, 57; Godolphin, 116.) So, keys of doors go to the heir, (Wentworth, 62) and chests containing the title-deeds of the inheritance (Wentworth, 64). " And we are inclined to think that the principles of these de- cisions will give to the heir the manure which may have been carried and left upon the field in heaps for dressing, or which may be left lying in heaps about the barn, upon the land. " It is well settled that when land is sold, whatever corn is 1 3 N. H. 503; Lee v. Eisdon, 7 Taunt. 191; Elwes v. Mawe, 3 East, 38. § 44 FEllTILIZETJS, 48 upon the land passes, and avc are of the opinion that all manure, whether it be in heaps about barns, or in other places upon the hind, <>-oos -witli tlic land to the vendee." § 44. Title to manure as between executor and heirs- at-law. — One of the most common cases where a question of this kind may arise, is between executors or administrators on the one point, and heirs-at-law on the other. It is said, in the English books, that the line, in this instance, is drawn more closely there than in any other. ^ And it seems to have been settled that whatever has been in any way attached to the free- hold for the benefit of the inheritance, and is necessary to its enjoyment, shall go to the heir. Thus, in LaAvton v. Salmon, 1 H. Bl. 259, note, it Avas decided that salt pans, used in the manufacture of salt, although they might be removed without injury to the building, should go to the heir. Many things Avhich are not affixed to the freehold go to the heir as appurtenances to the inheritance. Thus, it is said that young doves in a dove-house, not able to fly, belong to the ex- ecutor, but the old doves go with the dove-house to the heir. So keys of doors go to the heir, and chests containing the title- deeds to the property pass to the heir. And so, by analogy, it appears that the principles of these decisions will give to the heir the manure which has been carried and left upon the helds in heaps for dressing, or Avhich may be left lying in heaps about barns upon the land.^ Such Avas the conclusion arrived 1 In these cases, the contest arose as to certain fixtures, whether they went to the heirs or executor. It was held that the fixtures necessarily went to the heir, because they were of the realty. It was said that the right between landlord and tenant did not altogether depend upon this principle. Many articles which, though originally chattels, might, when attached by the tenant to the freehold, cease to be sucli by becom- ing part of the freehold; and thougli it is in his power to reduce them to iicrson- alty by removing them during his term, tliey remain, so long as affixed, a part of tlie realty. (Strong v. Doyle, 110 Mass. 93.) " ^Manure made in tlie course of husbandry, upon a farm, is so attached to and connected with the realty, that, in the absence of any express stipulation to the contrary, it passes as apimrtenant to it." (Fay v. Mazzy, 13 Gray, 53.) - Fencing materials on a farm, part of the freehold, and if tliey are temporarily down or detached, without any intent on the part of the o^\^ler to put the fenc- ing materials to another use, they still continue to be regarded as fixtures. 49 FERTILIZERS. § 44 at in tills case, and It has been agreed with In similar cases where they have arisen in the other States, except the instances and to the extent hereinafter noticed. In INIassachusetts,^ it was held that manure from the barn- yard of the homestead of an Intestate, standing in a pile on the land, although not broken nor rotten, and not in a fit condition for Incorporation with the soil, is not assets in the hands of the administratrix, and she is not chargeable therewith as part of the personal estate. Manure made in the course of husbandry upon a farm is so attached to and connected with the realty, that, in the absence of any express stipulation to the contrary, it passes as an ap- purtenant to It. The reason of the rule Is, that it is for the benefit of agri- culture that manure, which Is usually produced from the drop- pings of cattle or sAvIne fed upon the products of the farm, and composed with the earth or vegetable matter taken from the soil, and the frequent application of which to the ground is so (Goodrich v. Jones, 2 Hill, 143, and to the same point. Walker v. Sherman, 20 Wend. G39.) So, also, it has been held, where hop-poles had been used the preceding year, but, the crop being harvested, the poles had been piled up on the farm for use the next year, that the poles, though wholly out of the ground, and in jiiles, were in effect fixtures, and not subject to be treated as jiersonal property. (Bishop V. Bishop, 11 N. Y. 123.) One of the judges dissented. 1 Fay V. Mazzy, 13 Gray, .53. The ground on which the learned judge (Hoar) places this rule is that the ma- nure, having been originally from the soil, should, to keep the estate in equal- ized value, return to it the enrichment of the droppings, does not appear to have been always the predicate of the proposition. In an old English case, Hindle V. PoUett, G Meeson & Welsby, 529, a tenant had stipulated that he would put and spread all the manure and comjjost then collected on the farm, and that he would not take away or sell any such from the premises. The tenant was at- tached, and sold out. His neighbor bought two of his cows, and, for conve- nience, left them in a pen on the land ; brought from other i)remises hay, fed them there for a coviple of days, and took away the manure — the droi^pings from the cows which he had bought, and which were from his feed. Held, that the manure belonged to the landlord, the owner of the soil, and that to take it away was a breach of the covenant. Lord Abinger says : "The question is not by whose provender the manure was produced, but whether it was made on the farm. Now, sufipose the farm was near some place where a large fair was held, and it was convenient to the farmer to take in the cattle brought to the fair for several hours, would he have a right to remove the manure made by these cattle ? Would not all their droppings be manure made on the farm ? Clearly so. This is manure made on the farm — the produce of the farm — and must be so regarded." Farm — 4. §§ 45-6 FEKTILIZERS. 60 essential to its successful cultivation, should be retained for use upon the land. Such is unquestionably the general usage and understanding, and a different rule would give rise to many difficult and em- barrassing questions. § 45. On sale of farm, manure goes -with the land. — Upon a sale (jf the realty, the manure upon the farm goes with the land. Such was the reasoning in Goodrich v. Jones,^ in which case Jones contracted to sell a farm to Goodrich for a money consideration, payable April 20th, 1836. Under this agreement, Jones, by Goodrich's consent, conveyed a j^art of the farm to one Vose, and the residue to Goodrich, who claimed and converted to his own use certain fence-boards lying on Vose's part, and certain manure in the barn-yard on his own part. This was after the deeds were executed. At the time of the execution of the deed to Vose, the boards were on the premises : they had all been in fences on that part, and some still remained so, though a good many were displaced, some let do^vn, and some blown down. The manure lay in the barn-yard, on Good- rich's part, where it had been accumulating for a long time. The cortversion of it by Goodrich Avas proved. The Cfuestion was squarely before the Court as to the charac- ter of the property in the fence-boards and manure. It was held that both the fence-boards, temporarily detached, and the manure, were part of the freehold, and passed by the deed. The manure belongs to the farm whereon it is made. This is in respect to the benefit of the farm and the common cause of husbandry. It makes a part of the freehold, and passes to the vendee. § 46. Ownership of manure as between landlord and tenant. — As between landlord and tenant the manure belongs to the former, unless there is an express stipulation to the contrary. If a farm is leased for agricultural pui'poses, there is raised between the parties to the transaction a contract by implication, where such, in terms, is not in the lease, that the tenant, on his 1 2 urn, 142. 61 FERTILIZERS. § 47 part, will conduct his operations and care for the farm in a work- manlike manner in accordance with good husbandry. Such a covenant, from the nature of things, implies that tlu^ manure .should be used in the farming operations ; every tenant is bound to cultivate his farm in a husbandmanlike manner, and to consume thereon the manure produced on it. Tliis is an en- pao-ement that arises out of the letting, and which the tenant cannot avoid without violating his contract ; ^ and at the end of the term such manure as remains on the premises the tenant has no property in ; he has no more right to remove it before the ex- piration of his term, or to dispose of it to others, than he has to remove or dispcfce of any fixture belonging to the farm. § 47. Usage as to title to manure. — Implied contracts of the character above indicated, however, are liable to meet with €xcc]itions and to succumb to the rule that local usage and Avell established custom may waive the implication, and possibly not only destroy it, but raise another contract the reverse of that .suggested above. Parties contractino- to do a certain business, or enter into re- lations with reference to well defined pursuits in a neighboi-hood devoted to occupations of a like character, such as husbandry, Avhere a large class of the people are engaged therein, may well be supposed to have made their engagement with a view to do the business in the way which is there customary ; and if there is a well defined usage as to any particular matter, such, for instance, as the mode of cultivation, or use of manure, such custom would control and characterize the implied contract.^ 1 INIifldlebrook v. Corwin, 15 "Wend. 1G9 ; Taylor's Land and Ten. 541 et snq. ; Daniels v. Pond, 21 Tick. 367. 2 Parsons on Contracts, p. 537, Vol. 2 ; Strong v. Doyle, 110 IMass. 02. In this case, -svliile defendant was negotiating for the purchase of plaintiff's farm, the parties made a distinct oral agreement for bnying the maniire on the farm, the plaintiff agreeing to put up the manure at auction for sale and the defendant to take it if he was the highest hidder. The plaintiff conveyed the farm to defend- ant and put up the manure for sale at auction, hut the defendant forbade the sale, claimed the manure as his own, and spread it upon the land. Held, a con- version of plaintiff's property. (Collender u. Dinsmore, 55 N. Y. 200; Cash v. Hinkle, 3G Iowa, 628.) "A custom cannot be set up against the clear intention of the jiarties to a contract as expressed therein, but the words of a contract must be construed in reference to a custom affecting the subject and known to the parties, that the true intention maybe ascertained." (2 Parsons on Cont. Sec. 9; Iluandskoff v. Brett, 14 Iowa, 102.) § 48 FERTILIZEKS. 52 E^'on in written leases, where nothing is said upon a topic in which is involved a Avell established usage, the same rule appeal's.^ The object of language is to express the meaning of the j)ar- ties, and words have frequently a local and special significance ; it is in the sense in which they are used that, to give effect to the agreement, they must be understood, and so the true condi- tion of the minds of the contractors is an-ived at by considering them to have had in view the custom in point and Avith which they were familiar. § 48. Exceptions to general rule as to manure. — In North Carolina, the converse of the general rule that manure on the farm is part of the freehold has been held to be law.^ In that State occurred a case in which there v^as neither custom nor agreement : the tenant, the plaintiff, purchased the land in 1841 : the defendant had been tenant of the former OAvners, and liefore the date of the plaintiff's purchase had raked into piles the manure Avliich had been made on the place dui'ing his ten- ancy, and especially that which was taken from the pig-pen. After the purchase of the land by plaintiff, the defendant remained on the farm, removed the manure, and then delivered the premises to plaintiff, and plaintiff sued for the value of the manure. The Court held that the outgoing tenant, where there is no covenant or custom to the contrary, has a right to all the manure made while he is on the farm, and that it was his per- sonal property. This decision is, however, so far out of line with its fellows that it should not be regarded as law : even the cases which, in the report of this one, are cited, upon analysis do not bear the construction ascribed to them, and the safer course is to disre- gard tins case ; such is also the opinion of a distinguished writer on the subject of landlord and tenant.^ 1 "Every demise Tjetween landlord and tenant, in respect to •u-liicli the parties are silent, may be fairly open to explanation by the general usage and custom of the countrj% or the distiict where the land lies." (Van Ness v. Paskara, 2 Pet. 137.) - Smithwick v. Ellison, 2 Ired. 320. 3 Taylor's Landlord and Tenant, 541, in -wliich the author, after stating the law in accordance with the text, says: "A diflercnt rule, however, has been laid down in South [Xorth] Carolina, where it is held that a tenant who is about to remove has a right, if there is no 53 FERTILIZERS. § 49 § 49. The right to collect sea-'weed for manure appears to bo in tlic ])ul)li(' so far as it may l)c; found upon the strip of land lying between high and low-water mark. Such would seem to be the inevitable result of the; jiublic ownership of this belt of land which is covered and left bare by the advancing and receding tides. In the sea-weed there is no title luitil it is somewhere deposited. In a state of nature, fast or floating, it is the projjcrty of no one. It has never been subjected to the law of "prinle occupancy," which is the foundation of all title. It has grown u])on no man's land ; it results from no person's labor, care, or skill, and has been reduced to possession by no one. Like wreck, or treasure trove, or animals /erce naturm^ its title vests in him who first takes possession of it.^ Tliis posses- sion is deemed to be taken by the owner of the land wdien it is left upon that part of the shore which belongs to the riparian proprietor, somewhat upon the principle by which title is ac- quired to soil made by "■accretion" or "alluvion." From the authorities, it is not clear how title to sea-weed is thus obtained. The o^^^lership of personal property may be ac- quired by what, in law, is called accession ; but, to acquire title by accession, the accessory thing must be united to the princi- pal, so as to constitute part and parcel of it, and sea-weed cannot be sti'ictly considered within this definition, for its sole value is as manure, generally to be used at some place other than where first deposited. But by whatever trains of reasoning the rule has been estab- lished, it has long been the law that sea-weed cast upon soil be- longing to a riparian proprietor vests in him, because of the ownership of the soil.^ The right to the sea-weed accumula- covenant or custom to the contrary, to all the manure made by him on the farm ; that it is his i^ersonal property, and he may remove it as such ; but this case is clearly at variance with all other American decisions on the subject." 1 2 Bla. Com. 401 ; Haslem v. Lockwood, 3-1 Conn. 500. 2 Church V. Jileeker, 34 Conn. 428 ; Emans v. Trumbull, 2 Johns. 314 ; Thillips V. Rhodes, 7 Met. 322. " The right of a proprietor bounding upon the sea terminates at ordinary low- water mark, and he has the right to sea-weed cast by extraordinary floods above ordinary high-water mark. As owner of the soil, he is constructively the first occupant of it. But sea-weed cast and left ujion the shore — that is, between or- dinary high and low-water mark — belongs to the public, and may be laTvfully appropriated by the first occupant." (Mather v. Chapman, 40 Conn. 382.) § 49 FEr.TILIZERS. 54 tion is of tlio character of 'profits, a prendre, or those taken and enjoyed by the mere act of the proprietor himself ; and the right to so take depends upon the right which the party has upon the lands where the property is found, and this again depends upon the title to the soil. With the exception of the States of Massachusetts, INIaine, and Xew Hampshire, the ownei^hip in the soil of the riparian proprietor stops at high-water mark. In those States, by a pro- vision and ordinance in 1641, passed by the colonial legislature of the Massachusetts colony, the fee of riparian proprietors was extended one hundred feet from high-water mark, and this pro- vision has been accepted as the law in the three States above mentioned ; but they are exceptional to the general rule that the right of soil of owners of land boimded by the sea, or on navi- gable rivers where the tide ebbs and flows, extends to high- water mark ; and the shore below common, but not extraordi- nary, high-water mark belongs to the State, as trustee for the public.^ This last may, however, be sold hj the State to an in- dividual, and by prescription title may be acquired to it ; and, when so acquired, title to the land between high and low-water mark would carry with it the right to sea-weed deposited.^ 1 3 Kent's Com. 427. 2 3 Kent's Com. 427 ; Gould v. Hudson E. E. Co. G N. Y. 522 ; People v. Tibbitts, 19 N. Y 523 ; Mather v. Chapman, 40 Conn. 396 ; 2 Bla. Com. 292 ; Church v. Meeker, 34 Conn. 421 ; Peck v. Lockwood, 5 Day, 22 ; Hale de Jure INIaris, Chap. 6 ; 2 Bla. Com. 401 ; Haslem v. Lockwood, 37 Conn. 500. Part II. DAMAGES. 57 INJURY BY FIRE. § 50 CHAPTER V. INJURY BY FIRE. § 50. General rule as to damage by fire. § 51. No redress for damage by unavoidable accident. § 52. Common-law rule as to damage by lire. § 53. One may burn stubble, when. § 54. One may burn rubbish or wood on liis land. § 55. As to burden of proof of negligence in case of fire. § 56. Proximate damages alone recoverable. § 57. Statutes as to damage by lire. § 58. State laws as to injury by lire. § 59. A trespasser responsible for damage by fire. § 60. Liability of hunters or travelers for damage by fire. § 61. Damage by fire from steam thresher. § 62. Negligence in use of steam thresher. § 63. Duty of ijroprietor of steam thresher to use appliances to prevent escape of sparks. § 64. O^Tier of steam thresher not an insurer. § 65. Fires caused by locomitives, common-law rule. § 60. Rule in America as to fires by sj)arks from locomotives. § G7. Statute as to fires from locomotives. § 68. State laws as to fires from locomotives in America. § 69. Value of common-law rule as to fires from locomotives. § 70. Burden of proof of negligence when fire occurs from locomotive. § 71. Duty of railroad corporation to guai-d against fire. § 72. Care required to prevent escape of fire from locomotive. § 73. Duty of railroad company to extinguish fires caused by locomotives. § 74. Proximate and remote damage by fire from locomotive. § 75. Liability of railroad companies for damage by sjiread of fire. § 76. Duty of farmer to guard his crops against fire from locomotive. § 77. Farmers not bound to guard against fire. § 50. General rule as to damage by fire. — By the com- mon law, one who negligently sets fire to any building, rubbish, or anything upon his land, was liable for the damage which resulted from the spread of the fire to his neighbor's premises.^ The owner or possessor of property is, in general, responsible that it be so used as that others receive no injury ; and where such injury happens from the negligence of a person about the 1 Beaulieu v. Fringham, Year Book, 2 H. TV, f. 18, pi. G. §§ 51-52 IX JURY BY FIRE. 58 premises, it lies upon the owner to absolve himself, wlietlicr the damage results from his own act, or that of his servant, or other per.^im acting under his direction. The principle is, that every man is bound to so deal Avith his own property as not to injure that of others, and, therefore, if a fire occurs by the negligence of the OAvner of land on which it originated, and by the fire his neighbor's crops, buildings, or other property is destroyed, he v»diose negligence has caused the damage must be held liable for it ; ^ but he is not liable if the accident was inevitable, or he was not in fault. § 51. No redress for damage by inevitable accident, or for losses resulting from mutual negligence. — But Avhen tlie injury comes from the negligence of one party, he cannot shield liimself from liability by calling it an accident. A man is answerable for the natural and probable consequen- ces of his fault. But if his fault happen to concur with some- thing extraordinary and not likely to be foreseen, he will not be answerable. If, however, a man engage in an act which the circumstances indicate may be dangerous to others, he must take all the care which prudence Avould suggest, to avoid an injvuy. § 52. Common-law rule as to damage by fire. — Certain English statutes, enacted before the separation of the American colonies, relieved the owner of real property from liability for the spread of fire which commenced on his land accidentally, even though the commencement of the fire was due to his neg- ligence : and the Supreme Court of New York has held that these statutes are to be regarded as part of the common law as adopted by that State, and that, on principle, a man should not be held responsible for damages which result by spread of fire which accidentally caught on his land, even though he was neg- ligent in allowing it to begin.^ The opinion of Blackstone seems 1 Althorf V. Wolf, 22 K Y. 355; Booth v. Mister, 7 Carr. & Payne, G6; Blake r. F'jrris, 1 Sold. 48; Vaughn v. Menlove, 3 Bing. N. C. 408; Barnard v. Porr, 21 Pick. 378; Hanlon v. Ingram, 3 Clarke, (Iowa) 81. 2 Lan.sing ?;. Stone, 37 Barb. 15; 3 Kent's Com. 436, Note C; McGrew v. Stone, 53 Pcnu. St. 430. 59 INJURY BY FIRE. § 52 to be in accord with this proposition.^ But the general con- struction of these statutes, even in Enghmd, leaves the ori^In:i! common-law rule in force, and does not materially vary or modify it.^ 1 Dl. Com. 4.".1. 2 Vaughn r. :Menlove, 3 Bing. N. C. 4G8 ; 4 Scott, 241, in which tlm dcfondant stacked on liis land some hay in such condition as that there was danger of its taking lire from spontaneous combustion ; he was warned of its liability to take fire, and advised to take the rick down, but replied "that lie would chance it." It did take tire, and was not only destroyed, but the lire, spreading to the jilaint- iff's laud, tliere burned his cottage. Defendant was held liable, on llie ground that, tliough an accident, the lire was attributable to his culpable negligence, and he ought to respond to the damage done. In C'anterbury r. Attorney-General, 1 Phillips, 30G, Lord Lyndhurst com- ments upon this case, and questions the soundness of the decision, because the statutes of Anne and George III ajipeared to have been overlooked ; but in Filliber c. Phipiiard, 1'2 Q. B. :347, the doctrine of Vauglin i-. Jlenlovc was to be law upon the proposition that tlioso statutes applied only to fires jiurcly acci- dental. It should be considered, liowever, that the x^oint was not absolutely involved in this case of Filliber i\ Phijipard, as the fire was not accidental at all, but was purposely lighted by defendant on his land, and thence sj)read to his neighbor's. In Barnard v. Poor, 21 Pick. 378, the common-law rule was held to be law, and that tlie statutes of Anne and George III were, in effect, declaratory of it. It was held that an action on the case woiild lie for so carelessly carrying fire by defendant as that plaintiff's stock-yard was destroyed. But in ]\Iaull v. Wil- son, 2 Harring. 443, it was held that an action would not b'o for damages from a fire which was purely accidental, but spread from defendant's to plaintiff's premises. In a late New York case, Webb r. R. W. & O. R. R. Co. 4!) N. Y. 425, the law was discussed at lengtli, and the opinion of the Court was : "It cer- tainly is not a novel iiropositiou that he who, by his own negligence or misadven- ture, creates or suffers a fire upon his own premises, which, burning his property, spreads thence on to the immediate adjacent ijremises of another, and tliere destroys the property of the latter, is liable to him in an action for the damages which he has suffered. This rule was founded on the general custom of the realm ; in other words, it was tlie peculiarity of the common law, and it has its support in the maxim, ' every man must use his owti so as not to hurt another,' and it was applied, not onlj' to the case of a fire arising in a house, but to that of one arising on the ojien land ; and not only where the fire was intentionally set and carelessly managed, but where negligently kindled. At fir.st it was held that tlie defendant was liable, though guiltless of negligence, and that he could defend himself only by showing that the fire was excited by some supe- rior caiise which he could not resist nor control. And so firmly fixed was tliis rule in the common law that there must needs be a statute to soften its rigor. (G Anne, Cliap. 31, Sec. G7 ; and 14 Geo. Ill, Chap. 78, Sec. 70.) "We have the common-law i^rinciple well establislied, thoroughly recognized, and still existing to this extent : that lie who negligently sets or negligently manages a fire on his own property is liable to his immediate neiglibor for the damage caused to htm by the spread of tlie fire on to his neiglibor's next adja- cent property. It is urged that tlie statute of Anne, as amended bj' tliat of the third George, is a part of the common law of this State, and that therebj' it is §§ 53-o4 IX.JUET BY FIRE. GO § 53. A man may bum stubble on his land, or use fire in any manner to clear hi< land, io long a.s 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, vmquestionably, be culpable negligence to start a fire in any place where, to a person of ordinary intelli- gence, it is apparent that a spread of the fire and injury there- from to another is reasonably to be feared.^ § 54. One may bum 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 culti- vation, 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 in- jure property.- So a rnfiri hns the right to bum the stubblf on provided that "no action, or suit, or process whatever shall be had against any person in whose house, chamber, stable, bam, or other building, or on whose estate any fire shall acciderdolbj 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 man- ages a fire." iTeall r. Barton, 40 Barb. 137; Keefe r. K. E. Co. Sup. Ct. ilinn. January, 1S75. "The owner has the absolute right to use his property as he pleases, ex- cept so far as the effect of such use may be to invade or infringe some right existing in another." 2De France f. Spencer, 2 Greene, (Iowa) 4C2; Calkins v. Barger, -14 Barb. 424; Stuart r. Hawley, 22 Barb. G19: Miller r. ilartin, 11 Mo. 508; Averitt r. Murrill, 4 Jones' (N. C.) Law, 323: Clark r. Foote, 8 Johns. 421; Fahn r. Eei- chert, 8 "Wis. 255; Hanlon r. 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 burn- ing of stubble, even at a very dry part of the year, and at the coiLsequent risk of the fire spreading, was not sulEcient 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 defend- ant, in the early part of Alay, set fire to some log heaps on his land; the logs 61 IX JURY BY FIRE. § 5o his land, subject to the same general rule that he must u.se or- dinary care to avoid spreading the fire upon the lands of others and there doino; damage.^ § 55. Negligence, burden of proof of in case of fire. — As to where lies the burden of proof of the exercise of ordin- ary care or negligence in case of fire, is to some extent an open ■were old and damp, and were at a consideral>le distance from his Jiouse, and about a third of a mile from i^laintiff 's barn. The land where the fire was set was damp, near a swamp, and had been burned over the year before. The de- fendant lighted the tire and left it, and went away from home not to return for some hours, lea^^ng it burning; the wind rose to a gale and blew the fire out from the log heap on to jilaintiff '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 1k! left home, he had a right to go away and leave the lire, and he should not be held responsible for the loss of the barn. But in Ilanlon v. Ingram, 1 Iowa, lOS, the defendant set a fire on his own land to bum rubbish, and the fire spread to his neighbor's premises and there did damage; the Court charged tlie jury that defendant was liable only for f/ross negligence. This charge was held to be error; that the rule was that he who lights a lire must guard it with ordinary care, should take such precautions against its spread as would naturally characterize a prudent man in the ordin- ary care of liis property. So in Garrett v. Freeman, 5 Jones' (N. C.) Law, 78, defendant set firo to a log heap which was within live j'ards of a fence, and there was,lying around the place much loose dry wood and other combustible material, and there Avas 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 culpaVjle negligence. On appeal, this instruction was held to be error, and judgment re- versed. " 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 proj)erty of another in consequence of such negligence, he is liable in dam- ages for the injury done. The gi.st 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 neg- ligence, or only a want of ordinary care on the part of the defendant." (Hewey V. Nourse, 54 ISIe. 259. ) " But if a man engage in an act which the circumstances indicate may be dan- gerous to others, he must take all the care which prudence would suggest to avoid an injury." (McGrew v. Stone, 53 Penn. St. 430.) 1 The rule is given in Hanlon v. Ingram, 3 Iowa, 81, as follows : " All of the cir- cumstances should be carefully weighed, and unless they disclose, with reason- able certainty, that, in setting out the fire, and preventing its escape, the de- fendant has used those precautionary measures which, as a prudent and cau- tious man, he would with reference to his own property, he shoiild be held liable."' § 50 IXJURY BY riRE. 62 question ; whether he avIio caused the fire from Avhich damage occurred must prove that he took due care to prevent its spread and take the affirmative of that proposition, or the phiintiff, wlio complains of the injury, must ])rove want of ordinary care. It is, however, now generally held to be the law, that the com- plaining party, as he must rely upon negligence, should upon that issue take the affirmative.^ § 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 Avliich commenced on the land of the person complained against, and which, by his negli- gence, 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 Avrongful act, or one culpably negligent, the immediate re- sults, and not those which remotely occur, are to be regarded.^ This distinction appears to have had great vv'eight in the minds of the judges, as it appears to have been generally conceded as law that, where the fi-re ran along a line of connected materials, such as dry grass, or forest trees, the person oi'iglnally in fault iTurbervil 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 Avas put upon his defense, and must show that he had taken ordinary care to guard against the spread of the fir(^ and damage to his neiglibors; but the converse of this was held in Touitellot v. iLOsebiook, 11 Met. 4(j0, and in Uatchelder v. Heagan, 18 ^le. .32; that, in any case in which a person makes a fire on his own land, for a lawful purpose, and the Ih'c sjireads and does damage to another, the person who has suffered, and complains of tlie injury, must aflirmatively allege and prove negligence, and that as the setting fire was a lawful act, it was, of itself, no evidence of negligence, Avhich is tlie gravamen. -"The negligently Imrning of a house, and the spreading of the fire to a neighboring house and tlie burning thereof, do not give tlie owner of the lost house a cause of action against the owner of the house in Avhich the fire orighi- ated, because the damages are too remote." (Ryan ?•. N. Y. C. R. R. 35 N. Y. 210; Pcnn. R. R. Co. v. Kerr, C2 Penn. St. Zo'',.) CrT INJURY BY FIRE. § 57 is licld lifiblc for tlic whole (Lamai^c, on the ground tli:it tlic damage is the immediate and proximate result.^ But this distinction appears more nice tlian wise ; it is diffi- cult to see any just distinction between a fire which spi'eads 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.^ § 57. Statutes as to damages by fire. — In Connecticut, one v.-ho 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 sucli damages as occur from a spread of the fire, and not to ex- tend to the case of a stranger who sets fire on land to which he has no right of possession. Against such an one, the common- law rule furnishes the means of redress.* 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. IMenlove, 32 Eng. Com. L. 613; Vandenbiirgli v. Truax, 4 Denio, 4Gi; Ryan v. N. Y. C. E. E. 35 N. Y. 214. Opinion by Ch. J. DeGrey. 2 Illinois C. E. E. v. McClelland, 42 111. 355, in whicli the sparks fi'om a locomo- tive i^assed through the air, a long distance, and set lire; it appeared that the engine was not provided with best apparatus for arresting sparks ; the company ■was lield liable as for the injury, which was deemed the immediate and proxi- mate result of negligence, notwithstanding the fact that tlie air was the medium through which the sparks passed. Eyan v. N. Y. C. E. E. Co. 35 N". Y. 210, and Penn. E. Co. v. Kerr, 62 Penn. St. 353, are commented upon, and without substantial approval, in Webb v. E. W. & O. E. E. Co. 49 N. Y. 423 and 427-31. And in Massachusetts it has been distinctly held that a man who sets and keeps a lire 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 ?'. Dewey, 107 Mass. 494.) In England, also, it has been held that there is no ground for distinction between cases where lire spread from running along the gi'ound 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. Eylands, Law Eep. 3 II. L. 330; Smith v. S. E. E. Co. Law Rep. G 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 i^erson, shall jiay to the OAvner all the damage done by such fire." * Grannis v. Cummings, 25 Conn. 1C5, 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. § 58 IXJURY BY FIRE. 64 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 Avhich therefrom result to his neighbor.^ The rule in California is that treble damages are awai'ded against him who negligently sets fire to his own woods, or neg- ligently 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 INIarch and November, and only then for the purposes of self-protec- tion 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 jirotect himself from prairie fires, and that he used all due precaution to prevent the spread of his fire. § 58. State lavrs 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, cither 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."'^ In iMichigan, 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. IC, Sec. 1. - Robertson v. Ivirby, 7 Jones' (N. C.) Law, 477. 3 Avcritt r. 3Iuitc11, 4 Jones' (N. C.) Law, 322. * IVjlitical Code Cal. Sec. 3344. 6 Code of Georgia, 1873, Sees. 1456-9. 65 INJURY BY FIRE. § 59 or shall willfully or negligently permit any fire to pass from his own woods, prairies, or grounds, to the injury or destruction of the property of any other person, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding one year, or both fine and imprisonment, in the discre- tion of the Court ; and shall also be liable to the party injured in double the amount of damages sustained.^ The laws of Ohio make it an offense, punishalilc l)y fine not exceeding fifty dollars, for any one to willfully and maliciously set fii'c to " any woods, prairies, or other grounds,"' other than his own, or to " intentionally permit the fire to pass from his own prairie or grounds, to the injury of any other person or persons, and any person who may so offend is made " liable to an action of the party injured, for the damages which he, she, or they may have sustained in consequence of such fire.^ In the several criminal codes are to be found provisions making the firing of woods, prairies, and lands, or negligently allowing fires to spread from a person's own lands upon those of his neighbor, misdemeanor or crime, and as such imposing pun- ishment by fine or imprisonment, or both.^ § 59. A trespasser responsible for damage by fire. — A trespasser who sets fire to land is responsible for the damages which result, as the proximate consequences of his act, not only to the owner of the land on which the fire begins, but also to all other persons ; and so of any one who either wrongfully or negligently sets fire to land which does not belong to .or is not in his possession ; he must respond for such damage as he has thereby caused.'^ And even if a person be rightfully in the high- way, traveling or driving stock, and he makes a fire upon or near the ground of another for a necessary purpose, but fails to take due precaution to guard against the fire spreading, he must an- swer for loss of property occasioned by the fire. 1 Compiled Laws Mich. 1871, pp. 2143-4. 2 Revised Stats. Ohio, Vol. 1, p. 432. 8 These statutes are, generally speaking, rather to be regarded as substantial afBrmations of the common law than as abrogating it, and entire reliance upon the statutes would be unwise. (Hewey v. Nourse, 54 Me. 258.) 4 Finley v. Langston, 12 ISIo. 120. Farm — 5. § 60-61 INJURY BY FIRE. GG § 60. Liability of hunter or traveler for damage by fire. — If :i luniter or traveler neglig-ently t^tarts a fire upon wild lands or prairie, lie is liable for all property destroyed by the flames. But as it is often necessary to kindle fires upon wild lands and upon prairies, fighting fire by fire is sometimes the only means at command for self-protection. The fact that fire Avas willfully kindled is not conclusive evidence to establish the liability of him who set it for damages which result fi'om its spread ; but the fact being established of a man's having set fire to land which was not his own, or in his possession, the bur- den of proof is upon him to show that he had good cause for so doing, and he must take the affirmative upon and establish that fact before he can avoid the liability ; and he must also show that he used due care and diligence to prevent the spread of the fire.i § 61. Damage by fire from steam-thresher. — The right to use such agencies as may occasion loss to another, or are dangerous, cannot be seriously questioned. There are no results which can be attained without some risk, and it would be as Injudicious to question the right to use horses to haul produce t(j market, because they might run away and cause Injury, as to call In question the right to employ steam-engines to work threshers. Neither can any precise lade of care In the use of 1 Clelland v. Tliomton, 43 Cai. 437. This was an action for damages. The complaint was that the defendant, while driving a herd of sheep througli the country, encamped near jilaintiff's premises, and carelessly left fires bui-ning, which, after defendant's departure, got out and spread to plaintiff's land, and there destroyed liis buildings and other jiroperty. Held, that where a party makes a lire for necessary purposes, upon or near the grounds of another, and negligently leaves it, with combustible material about it, and the lire spreads and destroys adjacerit property, the party building the lire is liable for the dam- age done. The rule is thus laid down in the latest standard work on negligence : " ]l7tc)i Jive is lair/til, hurden on plaintiff to prove ncrjlif/ence ; hut ofheriuise loith unlaiofnl Jiirs. Fire, like water or steam, is likely to produce mischief if it escapes and goes beyond control ; and yet it has never been held, in this country, that one building a lire upon his own premises can be made liable, if it escapes upon his neiglibor's premises and does him damage, without proof of negli- gence, liut tin.' nde is otherwise when the lire is unla\\'ful, in which case the burden is on the defendant, after proof of the unlawfulness, to defend liimself by proving rfimis. Eminently is this the case with lire started on prairies, or otluT wild lands, where the devastation is likely to be so terrible." ("Wharton cu Xegligence, Sec. 8(i7.) 67 INJURY BY FIRE. § 61 such eno;mes be prescribed, and tlicrc have been no instances in wliich the limit of approach toward straw stacks, fences, or buiklings have been fixed at which such- engines could be worked. Steam being generated by heat, and there being no known means of producing combustion Avithout a draught of air, which carries off sparks from the fuel, the emission of sparks from the smoke-stack of a steam-thresher is not of itself ille^id. The law, in conferring the right to use an clement of danger, pro- tects the person using it, except for an abuse of his privilege. But, in proportion to the danger to others, will arise the degree of caution and care he must use who exercises the privilege. Great danger demands higher vigilance and more efficient means to secure safety ; where the peril is small, less diligence will suffice. It is undoubtedly the duty of him who operates an engine in a dry grain field, where his machine is surrounded by combusti- ble matter, to use the utmost possible vigilance and foresight to avoid fire getting out and consuming property of value. The use of the steam-thresher and similar cKjricultural imple- 77ients ^ symbolize enterprise and attest the march of civiliza- tion ; and invoking, as we must, to their appreciation the talent and understanding in which they had their origin, we should subject those who use such implements to an appreciation of the appliances for safety which a coeval employment of ingenu- ity and talent have placed at their command. It is, therefore, the duty of those who use these hazardous agencies to control them carefully, to adopt every known safeguard, and to avail themselves, from time to time, of every approved invention to lessen their danger to others.^ 1 As to the precise meaning to be attached to sucli descriptive terms as " agricnltural implements," some doubt might be entertained as to whether a steam-thresher could properly be classed in that category ; but in the English statutes, 14 and 15 Vic. Chap. 38, Sec. 4, and 3 Geo. IV, Chap. 120, Sec. 3(), it Avas enacted tliat the words implements of hnsbcmclry should be deemed to include threshing machines, and in Eegina r. Matty, 27 L. J. (N. S.) Q. P.. 222, the steam- engine which jiertained to a steam-tln-eslier was held to be an implement of hus- bandry witliin tlic meaning of the statutes mentioned, so as to render it exempt fi'om payment of toll. 2 Tally V. Ayers, 3 Snead, (Tenn.) G77 ; Shearman Sc Eedfield on Negligence, Sec. 322 ; Brand v. Hammersmith R. Co. Law Hep. 4, H.L. 171 ; Rood v. N. Y. c*t § 62 IJS' JURY BY FIRE. 68 § 62. Evidence of negligence in use of steam-threslier. — These ])rinciples are abundantly supported by authorities, and are founded upon justice, but difficulties may arise in their practical application. Questions of skill, vigilance, care, and proper management in the business of running such machines, may become matter of controversy, as they may, for that mat- ter, in any business, and such questions so entirely depend upon the circumstances of individual cases that no general rule can be ^iven. All of this class of questions must be submitted to the jury, to determine from the circumstances what was due care, and whether or not it had been exercised. The solution of these questions depends upon the facts of each case. What is care in one case may be negligence in another, where the danger is greater and more care is required. The degree of care having no legal standard, but being measured by the facts that arise, it is reasonable that such care must be required wliich it is shown is ordinarily sufficient, under similar circum- stances, to avoid the danger and secure the safety needed. Ordinary care is, therefore, the only rule which can be stated as that for a lack of which the proprietor of a steam-thresher can be made liable in damages. But, as the degree of care is meas- ured in every case, or class of cases, by the surrounding cir- cumstances, that which is ordinary care in a case of extraordi- nary danger would be extraordinary care in a case of ordinary- danger, and that which Avould be ordinary care in a case of ordinary danger would be less than ordinary care in a case of great danger. Hence, as the nearest possible approach to a general rule, it results that those who avail themselves of these improvements and labor-saving machines, which, for their pri- mal motor, must rely upon so dangerous an element as fire, should be held, as a rule of ordinary care, to the employment of constant vigilance, and the use of the most approved meth- E. R. R. 18 Barb. 80 ; McCready v. S. C. R. R. 2 Strobli. T^w, 35(5 ; Vaughn r. T. R. R. 5 Hiirlst. & N. G79 ; Reading v. Yeiser, 8 Renn. St. 3(iG ; Frankford r. P. & T. R. R. 54 Penn. St. .345 ; I. C. R. R. v. Mills, 42 111. 407. The ox^nuT of a steam- thresher cannot he held resjionsible for injuries arising through the negligent use or management of his property by one who has i^laced himself in such position that as to him the owner owes no duty. (Keefe v. R. R. Co. Sup. Ct. Minn. Jan- uary, 1875.) 69 INJUEY BY FIRE. § 63 ods for, and appliances to Le used in, guarding against the escape of firc.^ § 63. Proprietor of steam-thresher must use appliances to avoid escape of fire, — The necessity of using particular ap- pliances to prevent escape of fire is a question of fact for the jury; and where the testimony as to the value of particular im- provements is conflicting, the question of whether or not the party who runs the machine should avail himself of it in order to exercise due care, has been held to be a question for the jury to pass upon as one of fact.^ And if such appliances as exper- ience has shown to be beneficial are upon the machine, the one who runs the engine must, at his peril, see that they are kept in use, and whether he has done so or not is especially for the jury to determine.^ 1 "A person who takes reasonable care to guard against accidents arising from ordinary causes is not liable for accidents arising from extraordinary ones." (Blyth v. B. W. Co. 2 Jur. N. S. 333 ; 11 Exch. 781 ; 25 L. J. Excli. 212.) The general rule is that, being authorized to so use fire to make steam, the owner of the machine is not liable unless he exercise the riglit carelessly. Accidents may, however, be of such a nature that negligence may be presumed from the mere fact of the accident. (Byrne v. Boadle, 33 L. J. Exch. 13 ; 9 L. J. N. S. 450 ; 2 H. & C. 722 ; 12 W. E. 279.) And if all the usual or needful appli- ances to prevent the escape of fire are used, and all due precaution exercised, still the owner of the machine is liable if the tire occur by reason of his so over- crowding his engine as to render inoperative the appliances used to prevent the escape of sparks, and by reason of such conduct the fire is set. (Hyett v. Read- ing R. R. Co. 23 Penn. St. 373 ; Jackson v. Chicago Etc. R. R. 31 Iowa, 176 ; Toledo R. R. v Pindar, 53 111. 447. ) The owner of the machine, however, is not to be held liable when a fire occurs, nor does a presumirtion of negligence arise because he had not on his machine the latest invention to prevent escape of lire. It might well occur that many inventions are of little or no value, and the person who used them might in so doing dejpart from usual and better jirecau- tions in relying upon a new plan or appliance. But if it appear that an inven- tion had come into general use, and had been found to be a means of avoid- ing the danger, and been generally approved of by those who made use of it, the owner of the machine ought to employ the agency at his command to avoid danger, and he neglects to do so at his peril. (Shearman & Redfield on Negligence, Sec. 332 ; Frankford v. P. & T. R. R. 54 Penn. St. 345.) " Ordinary diligence is no fixed and unalterable standard of care: it is always to be determined by the facts and circumstances of each case ; and when the circumstances are such as to indicate increased peril, it would require greater watchfulness to constitute ordinary care than under circumstances of less peril." (Murphy v. R. R. Co. 38 Iowa, 539.) 2Freemontle v. L. & N. R. R. 10 C. B. (N. S.) 89; Jackson v. C. R. R. 31 Iowa, 17fi; Dimmock v. N. S. R. R. 4 Fost. & F. 1058. 3 Anderson v. Cape Fear Steamboat Co. G4 N. C. 399; Rolke v. C. R. R. Co. 26 Wis. 537. § 64 INJURY BY FIRE. 70 Of course, it is for him who comphiins of the injury to satisfy the jury that the fire originated from the thresher engine ; but, the origin of the fire being proved, it would seem that suflficient had been shown to put upon the defendant the burden of proof of exercise of ordinary care under the circumstances of the case, and so it has been hehl ; ^ but in other Courts it has been hchl that phiintiif must take tlie affirmative and show what pre- cautions defendant miglit and ought to have taken, but did not.^ At all events, the plaintiff may safely rest when he has shown that the fire occurred by sparks escaping from the engine, and that other engines are in common use, so constructed and run that sparks from them do not escape, and that the particular engine did not retain its sparks as others in common use did ; and having made such a showing, the defendant would be put upon his proofs that his engine, was properly constructed, with the common appliances in use to guard against fire, and that it had been operated and guarded in such a manner as a man of or- dinary prudence and intelligence, under the circumstances, would exercise in guarding his own property of a like character from injury.3 § 64. Proprietor of steam-thresher not an insurer. — Not- Avithstanding the rule that he who employs in his business an element of danger must be held to strict care, and the use of all available means and appliances to avoid doing injury to others, his responsibility should not be so far extended as to deprive him of the riglit to make use of such machines as steam-thresh- ers, so long as he does so in such manner as to maintain the proper balance between danger and benefit to the jud^lic. There are no circumstances in life which are free from danger, and a member of the body politic can hardly so conduct his business as that a possibility of injury to others may not result therefrom ; but it would manifestly be wrong to therefore pre- 1 Sheldon v. Hudson R. R. 29 Barb. 22G; Bass v. Chicago R. R. 28 111. 9; Illin- ois C. R. R. V. Mills, 42 111. 407; Piggott t'. Eastern R. R. 3 C. B. 229; Fitch r. Pacific R. R. 45 Mo. 322. 2 Hull V. Sacramento R. R. Co. 14 Cal. 387; Gandy v. C. R. R. Co. 30 Iowa, 419. 8 Field V. N. Y. C. R. R. 32 N. Y. 339. It is negligence to run an engine after it has been found to scatter sparks. (C. & G. R. R. v. Cleveland, 42 Vt. 449.) And so it is to open the grates and let out upon the dry ground coal and cinders. (Martin v. Weston R. R. 23 Wis. 437.) 71 INJURY BY FIRE. § 65 vent individuals from acting at all, and the same right which the citizen has to use fire for household purposes exists in his favor to use the same clement as a labor power in machines such as those indicated, subject, however, to such duty as to care and providence as common prudence dictates. And, indeed, to limit the use, or extend the liability further, would go very far toward rendering the possession of property rather to be avoided than desired, and Avould tend to discourage any attempt to utilize the power of the elements, because of the danger involved. The proprietor and manager of machines, in themselves dan- gerous, takes upon himself grave risks, hazards his life and capital, and the public has an interest in his protection from extraordinary responsibilities. All that can reasonably be ex- pected of any owner is so to manage and use his property as carefully to avoid any injury to the property or rights of others, and no one can have any ground upon which to base a comj)laint of such use and management, unless thereby he can show him- self to have been injured in his property or his rights.^ § 65. Comnion-la'w rule as to liability for fires caused by locomotives. — The general rule from the English authori- ties, Avherc loss has occurred by fire resulting from sj^arks dropped by a passing locomotive, has been that the fact of the fire occurring in such manner w^as prima facie evidence of neg- ligence on the part of the company, and that to avoid liability they must show that they had availed themselves of the best appliances in use, and had exercised due care to prevent the accident.^ iKeefe v. R. R. Co. Sup. Court, Minn. Jan'y, 1875; Whirly v. Whitman, 1 Head, 610; Lynch v. Newdin, 1 Q. B. 29; Birge v. Gardiner, 19 Conn. 507. 2 Such, at all events, appear to be the principles of the earlier cases. Piggott V. Eastern Counties R. Co. 3 C. B. 229. — This case, decided in 1840, has since been so often quoted and commented upon in England and America as to have ac- quired in both countries an especial value. The language of the opinion, by Tindal, C. J., is : "The defendants are a company intrusted by the legislature with an agent, of an extremely dangerous and unruly character, for their own private and particular advantage ; and the law requires of them that they shall, in the exercise of the rights and powers so conferred on them, adopt such pre- cautions as may reasonably prevent damage to the property of third persons through or near which their railway passes. The evidence, in this case, was abundantly sufficient to show that the injury of which the plaintiff complains § GQ INJURY BY FIRE. 72 The subject has been discussed at considerable length in the more recent English cases, and in them the general principles have been recognized that the mere fact of the company using fire as a means of locomotion, from which occasional fires will be commimicatcd to property near the line of the road, makes the companies responsible for the damages caused thereby, and that they Avcre so liable, where unable to show that all avail- able means had been exhausted and all proper appliances used to prevent the occurrence of such accidents. In one case, the rule was carried so far as to declare that the company, availing itself of means of locomotion of such a character as necessarily to incur great risk of doing damage to others, must be deemed to have accepted the risk and assumed the liability.^ But, in the Exchequer Chamber, the rule has been so far modified as to admit that, the legislature having legalized this mode of loco- motion, the companies could not be held liable without proof of gome deo;ree of neo-lect.^ § 66. American rule as to fires from, locomotives. — In the United States, railroad companies have been more favored •was caused by the emission of sparks or particles of ignited coke coming from one of the defendant's engines ; and there "vvas no proof of any jirecautiou adopted by the comjjany to avoid such a mischance. I therefore tliink the jury came to a right conclusion in finding that the company were guilty of negli- gence, and that the injury complained of was the result of such negligence. There are many old authorities to sustain this view ; for instance, the case of !Mitchel V. Alestree, 1 Vent. 295, for an injury resulting to the plaintiif from the defendant's riding an unrulj' horse ; that of Bayntine v. Sharp, 1 Liitw. 'M, for permitting a mad bull to be at large ; and that of Smith v. Felah, 3 Stra. 12(>4, for allowing a dog, known to be accustomed to bite, to go unmuzzled. The pre- cautions suggested by the witnesses, called for the plaintiff in this case, may be compared to the muzzle in the case last referred to. The case of Beauleau v. Fingliam, in the Year Books, p. 2, H. IV, fol. 18, pi. 5, comes near to this. There the defendant was charged, in case, for so negligently keeping his lire as to oc- casion the destruction of the plaintiff's jiroperty adjoining. The duty there al- leged was, 'quare cimi secundum lerjem ct considtudiem regni nostri Anr/liw hacte- 7ias obtentam, quod quilihct de eodem rerjno ignem suimi salvo ct secure custodial, et custodiie, teneatvr, ne per irjnem suiini damnum aliquod vicinis suis cveniut.' " Al- though in Aldridge v. O. "\V. R. Co. 3 M. & G. 515, where a loss was shown to Lave occuiTed by lire set by sparks falling from an ordinary engine, run in an ordinary manner, it was held tliat the facts did not necessarily show either neg- ligence or no negligence ; that the fact should be left to the jury. 1 \'aughn )•. Taffvale Railw. .'? II. & N. 743. 2 Ibid ; S. C. in Exchequer Chan. 5 H. & K. G74 ; King v. Tease, 4 B. & Ad. 30. 73 INJURY BY FIRE. § 66 than in England, and tlic rule of their liability, for damage done by fires caused by sparks from locomotives, is much moi-e ad- vantageous to the companies than it has been in the mother country. The reason of this difference is probably in the com- paratively high value of money in America, and the consequent difficulty of inducing the owners of capital to employ it ujion works of the magnitude of the construction and equipment of railroads, but in the creation and working of which the public is so far interested as to induce applications of the law as favorable to the companies as is compatible with safety to the public. From whatever cause it may result, the difference is manifest, and in this country it seems to have been assumed that the business of railways, on which steam locomotives arc used, be- ing lawful, no presumption of negligence arises from the fact that sparks from the engines set fire to adjacent property.^ And from a majority of the later cases it appears that to entitle a plaintiff to recover of a railroad company damages on ac- count of fire resulting from sparks emitted from one of its en- gines, the negligence of the company in the premises must be shown, either directly or by circumstances tending to establish it; such as the absence or imperfect condition of a spark-ar- rester, the excessive amount of steam, an unlawful rate of speed, or the like. The mere fact that the fire was occasioned by the 1 Rood V. K Y. & E. R. R. 18 Barb. 80; Lyman v. Boston & W. Railway, 454; Commonwealth v. Metropolitan R. R.Co. 107 Mass. 2.36. In some of the States the statutes specially provide as to where shall lie the burden of ^iroof of negligence in such cases ; but these statutes are, and the rul- ing on them, exceptional; as, for instance, Baltimore Etc. R. R. Co. v. Dorsey, 37 Md. 19. "Maryland Code, Art. 77, Sec. 1 — making railroad companies re- sponsible for injuries by fire from locomotives — construed to include a case of fire from cinders thrown from the engine by the com^iauy's servant in charge, and to lay upon the company the burden of disproving negligence." So in Chi- cago V. Quintance, 58 111. 389: "Under the Illinois Act of 1869 — making the fact that an injury has been occasioned from sjiarks emitted from a locomotive while passing along the road, full prima facie evidence of negligence on the part of the company — it is no rebuttal to show that the engine Avas originally con- structed with the best and most imjiroved invention to prevent the escape of sparks. The law imposes the duty of constant vigilance to keep in reiiair." Under such a statute in Massachusetts, where tlie sparks from the engine communicated fire to a shop, and the wind drove the sparks from the shop sixty feet across the street, and set fire to a house, it was held that this second fire must be regarded as "communicated" by the company's engine, within the statute. (Hart v. Western Railway, 13 Met. 99; and see also Fitchburg R. R. Co. V. Charlestown Mutual Ins. Co. 7 Gray, 64.) § G7 INJURY BY FIRE. 74 sparks docs not make a prima facie case against the company.^ But in some of the State Courts it has been held that Avhcn the origin of the fire has been shown to be from sparks dropped by a locomotive, the railroad company must show that they used all necessary precautions to avoid doing such mischief.^ § 67. Special laws as to fire from locomotives vary the general rule in some of the States, and conform to the principles of the English law, by holding the companies to the proposition that, in accepting the use of an agency so dangerous as a loco- motive, they must be deemed as accepting all losses which may occur by fire from sparks falling from their engines, unless they can show due care in ffuardinsr ajjainst the dano;cr . in some in- stances the State laws go even further, and, as in Massachusetts, make the railway companies liable for all damage done in this way. It has, however, been held that such statutory liability only extends to property of a permanent nature, and upon which an insurance may be effected ; and that for injuries of this kind to other property the company can only be held liable where there has been on their part negligence, unskillf ulness, or impru- dence in running and conducting their engines.^ 1 Gandy f. Chicago E. R. Co. 30 Iowa, 420; 1 Redfield on Railways, 452. "It seems to have been assumed, in this country, that, the business of railways be- ing lawful, no iiresumption of negligence arises from the fact of fire being com- municated by their engines." It is to be observed that a tendency to establish a standard of care on the part of the railroad companies, less high than that which has generally been esteemed just, is becoming manifest in some of the Courts, and markedly in those of the State of Xew York. Indirectly, the power of great corporations manifests itself by the ability of learned counsel which it can command, and the influence of arguments which such counsel can bring to bear upon the Courts; it is, however, to be hoped that such effects are to be but temporary, and that the safer rules will be found to be those advocated by the leading law journals, holding the companies to such reasonable care as the nature of their business makes requisite, to guard the community from dan- ger. (McGrath v. N. Y. C. & R. R. Co. 59 N. Y. 408; Albany L. J. Jan. 15tli, 187G, p. 3G.) 2 Bass V. Chicago R. R. Co. 28 111. 9; I. C. R. R. Co. v. Mills, 42 111. 407; Fitcli v. Pacific R. R. Co. 45 Mo. 322; Bedford v. Hanibal R. R. Co. 4G ISIo. 45G; Spaulding V. Chicago R. R. Co. 30 AVis. 110; Case v. Northern Central R. R. Co. 59 Barb. G44. 8 Chapman v. Atlantic & S. L. R. R. Co. 37 Me. 92, which was an action for damages by fire, caused by sparks from a passing locomotive to a lot of posts piled up near the railroad, upon a permission to put them thereby the owner of the land. It was held tliat the company was not liable, under tlie statute, for loss of such property, and that plaintiff, to recover, must show negligence. 76 IXJUllY BY FIRE. § G8 But groAving trees, orchards, and all other property which is attached to the soil, or is a part of the realty, or is of such a character as to be permanently upon the premises, in such manner as that the company may fairly be presumed to have known that it might be exposed to injury by fire from their en- gines, when they accepted their charter or built the road, are within the provisions of such statutes, and the owners of such property may, in this connection, regard the railroad company as a special insurer to the extent prescribed.^ § 68. State laws as to fires caused by locomotives. — The statute of New Hampshire is of such a character, and makes the company liable for all damages which may accrue to any person or property by fire or steam from any locomotive, or other engine, on a railroad ; ^ and the liability of the proprietors of a railroad, under this statute, for injuries caused by its opera- tion, extends to all persons who may come within its influence.^ So, in Maryland, the code provides that a railroad company shall be res2:)onsible for injuries by fire occasioned by its engines, or carriages, upon its road, unless the company can prove, to the satisfaction of the Court, that the injury complained of was committed without any negligence on the part of the company 1 Pratt V. H. & St. L. R. R. Co. 42 ISIe. 579. The statute under which this ac- tion was brought made provision that "when injury is done to a building or other property of any person or corporation, by fire communicated by a loco- motive engine of any railroad corporation, the said corporation shall be held re- sponsible in damages to the person or corporation so injured." (Stats, of Maine, 1842, Chap. 0, Sec. 5. ) But that this liability might not be too onerovis on the company, the same section provides that the railroad corporation should have an insurable interest in the property. The action was for the recovery of dam- ages done to growing timber on the plaintiff's land, by tire from the defendants' engine, distant almost three hundred feet from the line of tlie railroad, commu- nicated to materials growing and naturally lying on the land between the plaint- iffs premises and the railroad track, and thence spreading to the land of the plaintiff. The defendants relied upon Chapman v. At. & St. L. R. R. Co. 37 Me. 92, above cited. In this case, commenting on Chapman v. At. & St. L. R. R. the Court says : " The analogj'^ between the cedar posts deposited some few rods from the railroad, and growing trees, is not strong. The former being considered, in the case cited, as movable property, having no permanent location, but from its nature left for the purpose of being put in some other place within a short time, was not insurable property, so that it would be imderstood as falling within the pur-i'lew of the statute." 2 Sec. 8, Chap. 148, General Stats. N. H. 3 Price V. Concord E. R. Co. 51 N. H. 591. § G9 INJURY BY FIRE. 76 or its agents ; ^ and in that State it has also been hehl that the law applies alike to cases where the party complaining suffers loss directly from the engine itself, by sparks escaping through the smoke-stack, or from coals or cinders thrown from the en- gine or lire-box by the servants of the company.^ If the party injured establishes, by sufficient proof, the fact that the fire originated from the fire in the locomotive, and that he has suf- fered damage thereby, then the onus is cast upon the company of proving that such damage was not the result of carelessness or negligence on the part of the emj^loyees of the company. § 69. Value of common-la-w rule in America. — From these laws above mentioned, and similar statutory enactments, It would appear that the necessity of the rule which has been recognized in England is, to some extent, manifest in America, and has been there, also, regarded in the provisions inserted in the law to impose upon the railroad companies the taking of such precautions as would, to the greatest possible extent, pre- vent the occurrence of loss so great as is liable to result from the spread of fire. Beyond the individual injury to him whose property is imme- diately affected by the danger of fire by passing locomotives, the public is liable to great loss from conflagrations originating from the use of so dangerous an element as steam on roads, and it is not wholly apparent that the American invasions of the common-law rule have been judicious.^ 1 Art. 77, Sec. 1, Code of General Laws of ISIaryland. 2 Baltimore & O. R. R. Co. r. Dorsey, 37 Md. 24; Woodruff's Case, 4 Md. 242; Lamborn's Case, 12 Md. 257. 8 Grand Trunk R. R. Co. v. Richardson, U. S. Sup. Court, January, 1870. "The plaintiffs were allowed to prove tliat, at various times during the season, before the lire occurred, some of the defendant's locomotives scattered lire while pass- ing, without showing that either of those which tlie plaintiffs claimed communi- cated the lire were among tlie number, and without showing that tlie locomotives were similar in make, state of repair, or management, to those claimed to have caused the fire. Held, that the evidence was admissible." This case was from Vermont, under a statute providing that in case of fire communicated by locomotives the company should be responsible, unless it showed due care. In Massachusetts, imder a similar statute, it was held that tlie company was responsible for all negligent injuries so communicated, whether proximate or remote. (Hart v. R. R. (Jo. 13 ISIet. 'M; Albany L. J. Feb. 5th, 187(5, p. 8i).) liedlield on Railways, Vol. 1, p. 450. "We cannot forbear lo add that the in- 77 INJURY BY FIRE. § 70 § 70. Burden of proof of negligence. — The question wlictlicr negligence us to the construction and manao'cnient of «i locomotive, is to be implied from the fact of fire haviiii^ es- caped from it, by which i)roperty is destroyed, so as to cast the burden upon the company of showinj^ that it was px'operly con- structed and properly managed, is one with respect to which there seems to be a clear and decided conflict of authority. The rule of the English Courts, and that of many of the Amer- ican States, is that the burden of proof rests upon the company when property is thus shown to have been destroyed.^ And upon the converse of the proposition it has been con- tended that the statute of 6 Anne, Chap. 3, Sec. 6, enacted in 1807,^ providing that no action shall be maintained against any in whose house or chamber any fire shall accidentally begin, and the statute of 14 Geo. Ill, Chap. 78, Sec. 86, Avhich ordains that " no action, suit, or process whatever, shall be had against any per- son in Avhose house, chamber, stable, barn, or other building, or on whose estate, any fire shall, after the 24th day of June, 1784, accidentally begin, nor shall any recompense be made by such person for any damage thereby, any law, usage, or custom to the contrary notwithstanding," were adopted by the several States as a part of the common law, and that at least the burden of terference of the legislatures upon this subject in many of the American States " (making the comi')ames liable, and throwing on them the onus of showing absence of carelessness, etc.) "seems to us an indication of the public sense, in favor of placing the risk in such cases upon the party in wliose power it lies most to prevent such injury occurring. There seems to us both justice and policy in the English rule on the subject." 1 Albridge v. G. W. R. Co. 3 Man. & Gr. 515 (42 E. C. L. K. 272); Piggott v. Eastern Counties R. Co. 3 Man. Gr. & Scott, 229 (54 E. C. L. R. 228); Gibson r. Southeastern R. Co. 1 Foster & Finl. 23; Ellis v. P. & R. R. R. Co. 2 Ird. Law, 138; Herring v. W. & R. R. R. Co. 10 Id. 402; Hugett v. P. & R. R. R. Co. 23 Penn. St. 373; Hull v. S. V. R. R. Co. 14 Cal. 387; Bass v. C. B. & Q. R. R. Co. 28 111. 9; 111. C. R. R. Co. v. Mills, 42 111. 407; McGreadyu. R. W. Co. 2 Strobh. Law, 356; Cleveland v. G. T. R. R. Co. 42 Vt. 449; B. & L. R. R. v. Woodruff, 4 Md. 242; Spaulding v. Ch. & K W. R. R. Co. 33 Wis. 582. " Tlie fact that damage was caused by fire escaping from a locomotive engine creates a, presumption that the engine was defective in construction or condition, which throws upon the railroad company the burden of proving the contrary. Such i:)resumption is, however, but a jiresumption of law; and it is for the Coiirt, not the jurj"^, to determine the amount and character of the proof neces- sary to overcome it." This case was decided in 1873, with all the older decisions considered upon full argument, the case being in the Supreme Court for the second time. 2 1 Bl. Com. 431. § 71 INJURY BY FIRE. 78 proof of negligence 'vvas upon the plaintiff ; that defendant be- ing engaged in a legitimate business, the conduct of which re- quired the use of fire in such manner as that some danger of setting fire was necessarily incurred, the plaintiff must show neg- ligence in the construction or management of defendant's en- gine, and that the fact that fire gets out from the locomotive does not make a prima facie case of negligence against the company.^ § 71. Duty of railroad company to guard against fire. — But Avhatever may be the rule, if there is one applicable, as to burden of proof, the law is such that railroad companies, in the construction of their engines, are bound not only to employ all due care and skill for the prevention of mischief arising to 1 R. R. Co. V. Yeiser, 8 Barr. (Penn.) 3GG; Turnpike Co. v. R. R. Co. 54 Renn. St. 349; Lansing v. Stone, 37 Barb. 18; Burrouglis v. R. R. Co. 15 Conn. 124; Para- more V. R. R. Co. 31 Ind. 145; Rood v. R. R. Co. 18 Barb. 80; Sheldon v. R. R. Co. 4 Kern. 224; Opinion by Hubbard, J. ; Field r. R. R. Co. 32 N. Y. 349; Smitli V. R. R. Co. 37 Mo. 294, in Avhich the jwoposition was most strongly stated, and it was held that "in an action for damages against a railroad for negligently managing its engines, so that fire was communicated to the standing crop and grass of i^laintiff, the l.)urden of proof is uixjn the jilaintiff to show that the lire was caused by Ihe negligence or want of care of the defendant. There is no legal iiresumption of negligence in such cases — it must be shown as a matter of fact." These cases are decided upon the api^lication of the general principle that the use of locomotives is lawful; that an action does not lie for a reasonable ex- ercise of one's right, though it be to the injury of another (P. & R. R. R. Co. V. Yeiser, 2 Am. R. R. Cases, 325; Burroughs r. N. R. R. Co. 2 Am. R. R. Cas. 30; Rood V. N. Y. & E. R. R. Co. 18 Barb. 80); and that a railroad company, be- ing in the lawful use of appliances to carry on its business, to which is necessa- rily incident a risk of setting fire, the plaintiff against the comjiany must take the aflirmative upon the issue of negligence. (Indianapolis Etc. R. R. Co. v. Paramore, 31 Ind. 143; P. & R. R. R. Co. v. Yeager, 73 Penn. St. 121.) "A party is not answerable in damage for the reasonable exercise of a right, imless upon l^roof of negligence, unskillfulness, or malice. Buildings were burned by sparks from a locomotive used in the ordinary way u^ion a railroad ; in a suit by the owner against the company, held, there being no evidence to justify an infer- ence of negligence, that the jury should have been instructed to find for de- fendant." Rood V. N. Y. & E. R. R. Co. IS Barb. 87, in which it Avas held that authority to run a steam-engine is an authority to emit sparks therefrom. So in Garrett r. N. AV. R. Co. o(i Iowa, 121, it was held that the mere fact that fire was caused by sparks from a locomotive does not establisli a i^rima facie case of neg- ligence against the company, but that, as in the nature of the case, the plaintiff must labor imder difliculties in making jiroof of negligence, it may be estab- li^]lcd by circumstances bearing more or less directly on the case, which might not bo .satisfactory in other cases free from such diflieulties and open to clearer proofs. 79 INJURY BY FIIIE. § 71 the property of others by the emission of sparks, or any other cause, but they are also bound to avail themselves of all the discoveries which science lias put within their reach for that purpose, provided they are such as, under the circumstances, it is reasonable to require the companies to adopt ; ^ and if fires oc- cur by sparks from a locomotive, the company must be prepared to show that the engine was properly provided with such appli- ances. The reasons given for requiring the companies to show that this duty has been performed on their part, and that the agents and employees of the road know, or at least are bound to know, that the engine is properly equipped to prevent fire from escaping, and that they know whether any mechanical con- trivances were employed for that purpose, and if so what was their character ; whilst, on the other hand, persons not connected Avith the road, and who only see trains passing at a high rate of speed, have no such means of information, and the same is in- accessible to and cannot be obtained by them without great trouble and expense, and then often as a favor from the com- 1 Dimmock et al. v. N. S. R. R. Co. 4 Foster & Finlason, 10G4. The rule in the English Courts is thus stated: The company, in the construction of its en- gines, must take all due care, and avail itself of all the appliances which science has put within its reach, provided it is, under the circumstances, reasonable to require them to adopt; and the test is the comparative degree of the risk on the one hand, and the expense or practical inconvenience on the other. It is for the jury to draw the line, and if, in the case before them, the jury lind that there were precautions which, under the circumstances, it would have been reason- able to reqiiire the company to adopt, then the non-adoi:)tion of these jirecau- tions would be negligence on their part. With reference to tliat question the jury should consider the evidence of tlie scientific and practical witnesses, on one side and the other, and decide the proposition by the pi'epouderance, and especially as to the practical value of the appliances which it is claimed the company ought to have adopted. In the American Courts this decision is quoted, approved, and made the basis of the rule as to employment of appliances to prevent escape of sparks so as to cause damage by fire to property. (Spaulding v. C. Etc. R. R. Co. 30 Wis. 110; Bedell v. L. I. R. R. Co. 44 X. Y. 3G7; Cleveland v. Grand Trunk R. E. Co. 42 Vt. 449. ) The rule is given in Shearman & Redlield on Negligence, Sec. 322. A railroad, authorized to use steam power, " has necessarily the right to use fire as a means of generating steam, and is not liable for injuries by sparks or coals escaping from its locomotives, if it has adopted every known l^recaution against such accidents; though it will be liable therefor if such pre- cautions be not adopted. It is not meant by this that the comjiany will be thus liable, on simple proof that an invention was in existence, by the use of which the injury might have been prevented. It must appear that, before the time of the injury, the invention had come into common use, and had been aj)- proved by experience." § '''t INJURY BY FIRE. 80 pany, which, under the circumstances, the company woukl be very likely to Avithhold. So, also, it would seem that the duty is imposed upon the company of so keeping its road-bed, and lands immediately adjoininii:, free from such inflammable material as would, in conjunction with the use upon the engine of an cle- ment so generally dangerous as fire, create a special risk to those Avho had property in the vicinity. It will not be a sufficient de- fense to an action against a railroad company for damage by fire from its locomotive alone, to shoAV that the engine was properly constructed and run, if it appear that the lands of the company through which the road runs, or the road-bed itself, are so covered with dry grass, forest leaves, or other inflammable substances, to such an extent as to render the danger of fire on that account peculiar, it being made to appear that the confla- gration was caused by sparks falling upon such inflammable substances.^ 1 "WTiere the company permits dry grass to remain on tlie strip of land be- tween the track and tlie fence, and the dry grass, being there, constitutes a means of fire from the engine, extending to and injuring jiropcrty ; tlie fact of the grass so being permitted to remain is one proper for the jury to consider in an action against the companj' for damages resulting from the fire. If the dry herbage was permitted to remain standing in such quantities as shows negligence, evi- dence of that fact would ordinarily be admissible. (Henry v. S. P. R. R. Co. Sup. Ct. Cal. August 2, 1875; Sill v. Reese, 47 Cal. .'Ml; Flinn v. R. R. Co. 40 Cal. 11.) Spaulding v. C. & N. R. R. Co. 30 Wis. 123. On the trial of this cause the fol- lowing instruction was asked : " The defendant Avas not bound to burn the dry vegetation on any portion of its way, when, by reason of the direction or force of the wind, or other attendant circumstances, it would endanger its own property, or the property of others, so to do." This request was refused, and, on appeal, the Supreme Court said: "It seems to have been taken for granted, on the trial below and in this Court, that the only, or the most practicable and usual metliod resorted to 1)y railroad companies to remove the dry grass or other inllammablo materials, such as forest leaves, etc., accumulating on tlu; right of way, is, under the supervision of workmen, to burn them on the way, on either side of the track, to the fences or boundaries of the company's land on either side. To carry on this operation with safety, many things must be taken into account, and especially the course of tlie wind, when that is blowing; the fire must be set to windward of the track, which will interrupt its passage, and not be taken in the direction of the adjoining fields on the side where set, from which mis- chief and the destruction of property might ensue. There was some evidence, and enough, we think, to have carried the question to the jury, whether the fail- ure of the company to remove, in this way, the dry grass and leaves from the place where the fire was shown to have been communicated, was or was not negligence, or an omission of duty on its part, for which it should be held to re- spond in damages to the plaintiff in this action. The duty of removing such inflammable materials from the way owned by the company, impli(;s, as of course, that the company is to have reasonable time and opportunity for that 81 INJURY BY FlIiE. § 72 § 72. Care required in running locomotive. — From the principles involved, it necessarily results tliat the company must not only keep its engines properly equipped with all available appliances to pi'cvent damage by fires from sparks, hut must also compel employees to such management and control of the fires on the locomotives as are most conducive to safety in the use of the dangerous element used for making motive power. For any carelessness by the company's employees in using the fire, cleaning the grates, emptying cinders from the engine, or otherwise, the company must be held answerable for any dam- age to property which may result.^ And even without such carelessness, the company may be purpose, if tlie accumulation of snch materials lie uiiavoi steam in passing a place where there is danger from sj^arks, or that the dan- ger may be guarded against l)y mcclianical contrivances." (Henry r. S. P. R. R. Sup. Ct. Cal. Aug. 2, 1875.) "Tlie Court l_>elow jirop^rly refused a nonsuit. We think there was evidence tending to prove that the fire was not the probable result of tlic ordinary work- ing of a locomotive under like circumstances, and, in such case, evidence that the fire was communicated from the engine is evidence of negligence sufficient to go to the jury. "There was, however, evidence of specific negligence, in that there was evi- dence tending to prove that tlie particular engine was required to perform ser- vice whicli caused it to labor and emit more sparks than if a less number of cara had been attached to it." (Walford on Railways, 183, 184, and notes.) T. P. & AV. R. R. Co. V. Pindar, 53 111. 447. " Railroad companies are required to provide, and keep constantly in use and in proper repair, tlie most approved machinery to prevent the escape of lire from tlieir engines, to the injury of prop- erty along their lines. If, notwitlistanding tlie use of such macliinery, sparks escape, and fire is thereby communicated to buildings, a company will not be deemed guilty of negligence unless the damage results from the neglect of some otlier duty. But even with tlie use of the best appliances to prevent the escape of lire, and sparks are produced to a dangerous extent, the company will bo deemed guilty of gross negligence." (Chicago v. Quintancc, 58 111. .')8i).) Tho use of wood in a coal-burning engine, in a dry and windy time, held to be in- dicative of gross negligence. (Chicago v. Quintance, 58 111. 38!).) 83 INJURY BY FIRE, § 73 vent th« spread of the conflagration and damage thereby. If It be possible for men on the train to do so, they shouhl pnt (jut tlic fire. They sliouhl even stop the train h)ng enough to do so, wlien by so stopping they do not incur the danger of collision Avith other trains ; and even if it is prudent or necessary for tlie train to move off, men should be left or sent back from the next station to put the fire out. The duty is general upon the railroad company, by its em- ployees, to take all the precautions to prevent injury to property of others which sensible, prudent persons would, under similar circumstances, use to prevent the communication of fire to their property.^ 1 Cook v. C. T. Co. 1 Denio, 91 ; Field v. K Y. C. R. R. Ca 32 N". Y. 339 ; Tolke r. C. & N. R. R. Co. 2G Wis. 538, by Cole, J. : "Among other instructions asked by the plaintiff, which the County Court refused to give, was one in substance to tlie effect that if the jury found from the evidence that the engine set a fire on the track of the roadway, on the day named, adjoining the premises of the jilaintiff, and that the servants of the defendant, in charge of sucli en- gine and train, knew such fire to be so set and kindled, then the servants of the company were bound to use ordinary care and diligence to extin- guish the fire ; and if the servants of the defendant knew the fire was so set at or about the time it was so set, and used no efforts whatever to extinguish such fire, but went away and left it burning, such conduct on the i^art of the servants of the company was evidence of negligence, and ought to be taken into consideration in determining the question whether the train was managed with due care with regard to fire. We think the instruction should have been given. It apjiears that the train in question was a gravel train, engaged in the repair of the road-bed, and. had about twenty-eight men on the train. And even if it had been prudent and necessary for the train itself to move off to the proper station as soon as it was unloaded, in order to avoid collision with other trains, what difficulty was there in leaving behind a sufficient number of men to put out the fire ? It was a dry time in the summer, when a fire kindled upon the track of the road would very likely spread to the adjoining premises. Men of ordinary care woiild, under such circumstances, use jiroper diligence to prevent the fire from communicating to the i^roperty of others. And if, accord- ing to the hypothesis upon which the instruction is framed, the employees of the company knew that a fire had been kindled on the track by means of the loco- motive, they were certainly bound to use ordinary care and diligence to extin- guish it ; and if they used no efforts whatever to extinguish it, but went away and left it burning, such conduct, we think, would amount to gross negligence." These remarks are made with reference to the character and condition of the train in question. "In tlie case of an ordinary freight or passenger train, even if the employees knew the locomotive had kindled a fire upon the track, it might not be possible to stop the train and put it out, or leave behind any one for that iwrpose. The safety of the train and passengers would be a matter of first importance, and negligence could not necessarily be Imputed if the serv- ants left the fire burning, without using any efforts to extinguish it. I5ut tlio instruction, when applied to the facts of the case, raises a very different ques- tion." So in Bass v. C. B. & Q. R. R. Co. 28 111. 19. A case in which sparks ^ 74 IXJURY BY FTEE. 84 § 74. Proximate and remote damages by fire from locomotive. — The fact that fire from ii locomotive avus not communicated directly to the property destroyed is no defense to an action for damages. If it appear that sparks have es- caped, or fire-brands or coals have been throAvn or dropped from an engine, and that thence fire has got out and spread, it will be of no avail for the company to claim that damage therefrom, for which an action will lie, niixst be confined to the immediate result upon the premises adjoining the roadway. It being shown that the fire originated by reason of negli- gence, the fact that property destroyed is remote from the railroad, that the fire reached it only after passing through in- tervening lands, does not prevent the owner from recovering damages from the railroad company on the ground that the cause of loss is too remote.^ from a locomotive set fire to stubble in a wheat-field tbroiigli -whicli the road ran, and thence sjiread to plaintiff's wheat stacks. Plaintiff being away from his home, his neighbor tried to extinguisli the flames, but could not, and called upon the employees of the company who were near ; informed them that the field was on fire by sparks from one of the company's engines, and that, unless they helped liim put the fire out, the stacks would be destroyed. The employ- ees of the company refiised to try to put the fire out, the stacks of grain were destroyed, and this action brought against the company for the value of the property lost by the fire. The Supreme Court gives its opinion in these words : " Railroad companies in some of the States maintain, at great expense, a regu- lar, well drilled, and efficient jiolice along the line of their roads, through culti- vated places, to protect the interests of property-holders from injuries such as those described in this case. They feel and know, in the use of an element so destructive as fire, they ought to be bovmd to use the greatest precautions. What, then, shall be said of these men, who were on the spot of the fire, who refused to extinguish it, uninfluenced by their duty to their employers or by the common feelings of regard for the interests and i^roperty of another, which they should have manifested, and through which they could have saved valuable property from total destiaiction ? It presents a case which will not bear favor- able examination, and stamps these men with infamy and disgrace, and for whose conduct the defendant ought to suffer." Shearman & Eedfield on Negligence, 322 : "It is the duty of the conductor of a train, not carrying passengers, nor pressed for time, to stop when the train has kindled a fire, and to extinguish it." (Bass v. Chicago Etc. E. E. Co. 28 111. 9 ; I. C. E. E. Co. V. Mills, 42 111. 407 ; Piggott v. E. C. E. E. Co. 3 C. B. 229 ; Fitch V. P. E. Co. 45 Jilo. .322 ; Bedford r. H. E. Co. 46 Mo. 456 ; Spaulding v. C. R. Co. .30 "Wis. 110 ; Case v. N. E. E. Co. 59 Barb. 644.) 1 Kellogg V. C. & N. W. E. R. Co. 26 Wis. 223; Perley v. Eastern E. E. Co. 98 ]SIass. 417. "Under the instructions, the jury must have found that the fire wliich destroyed the plaintiff's property proceeded from defendant's locomotive, and came in a direct line, and witliout any break, to tlic plaintiff's property. But in reaching plaintiff's land it went across the land of three or four different 85 INJURY BY riRE. § 75 It has been claimed that where a fire has, by a locomotive, been set at or near the roadway, a spread of it thence may result from an increased wind, by accidental circumstances, such as accumulations of inflsunmable materials upon premises not under the control of the company, and for the presence of Avhich the company could not be held responsible, and that, therefore, the business of running locomotives being lawful, railroad companies ought to be held only for proximate, and not remote results, from the escape of fire, and such reasoning is not entirely with- out foundation upon principle and precedent.-^ § 75. Railway companies liable for damage by spread of fire. — The general tenor of the later decisions is against the railroad companies, upon the jjroposition of their liability being confined to the immediate damage by fire from locomotives, and the maxim, causa 2yroxima non remota spectatur, is not controlled by time or distance, nor by the succession of events. An cflTi- cient, adequate cause being found, Avhence the damage has ensued, such must be considered the true cause, unless some parties, which lay between plaintiff's land and the railroad track, and the dis- tance to the plaintiff's land was about half a mile. It was fed, on its way, by grass, stubble, and woodland. The defendants contend that they are not liable for this injury, because it was remotely, not proximately, connected with the escape of the lire from their engine. But it was none the less communicated from the engine because the intermediate land belonged to other persons, nor because tlie distance was half a mile. If the land had all belonged to plaintiff, and liad extended a mile, it would be difficult to establish a line on his land, and to hold that the statute gives Imn no remedy for the damage happening beyond tliat line. Xor does the fact that there are several owners make the damage to the plaintiff remote, in the sense in which that term is used, as contradis- tinguished from 'direct' and 'immediate.'" 1 Ryan v. N. Y. Central Railroad Company, 35 aST. Y. 210. In this case, by careless management of its engine, in the city of Syraciase, defendants set lire to their own wood-shed ; thence the fire s^n-ead to plaintiff's house, a distance of one hundred and thirty feet, the heat and sparks from the burning shed setting fire to tlie house. The Court held that the company could not be held for the loss of the house ; that if it could, it might be made an insurer of the whole city, and that the remoteness of the danger forms the true rule on which the question should be decided, and that the company could only be held for the immediate result from carelessness, negligence, or mismanagement. Penn. R. R. Co. v. Kerr, C2 Penn. St. 353, in which, by negligence, fire was set to a warehouse, and thence spread to and consumed plaintiff's hotel. It was held that tlie company were not liable for the loss of the latter. That every one has to take the risks of the vicissitudes of organized society, and that because of the act of negligence the first building was set fire to, does not make tlie com- pany liable for all consequences. § 7G IXJURT BY FIEE. 86 other, independent of and not incidental to it, can be shoAvn to have intervened between it and the result. The maxim includes liability for all injuries which naturally result from the wrongful act of omission or commission, and the company must take their precautions, and make tliem extreme, to guard against the escape of fire from their engines, having in view the fact that they are to be held liable, not only for such loss as may immediately en- sue, but also all such as are likely to result from any neglect or mismanagement in the construction or use of their engines,^ § 76. Must the farmer guard against fire from locomo- tives ? — That he must do so may appear from the recognition of the right of the company to use engines, the escape of fire from which is a danger too obvious to be overlooked by any 1 Safford v. B. & M. U. R. 103 Mass. 583. In this case a fire was set by sparks from a locomotive to wood piled against a freight depot at a village station; the freight-house and contents were soon in a blaze, the wind rose and blew ciudera and sparks from the burning depot to xilaintiff 's dwelling-house, a distance of nearly 1,G00 feet, set fire to and destroyed it. Held, that the railroad company was liable for the loss of the plaintiiT's house. (Hart r. Vi". E.. E. Co. 13 Met. 99; Perly v. E. K E. Co. 98 Mass. 414; Quigley r. S. & P. E. E. Co. 8 Allen, 438- 40; Tulerville v. Stampe, 1 Ld, Eaym. 2(54; Hooknett v. C. 11. E. Co. 38 N. H. 242.) In Kellogg v. C. & N". W. E. E. Co. 20 Wis. 238, the cases of Eyan v. N. Y. C. E. E. Co. 35 K Y. and Penn. E. E. Co. v. Kerr, G2 Penn. St. 353, are com- mented upon, examined, and disapproved, while the converse of the proposition therein stated is held to be law, and Perley v. E. E. E. Co. 98 IMass. 414, is ap- proved and followed, and in Perley r. E. E. E. Co. these eases from K ew^ York and Pennsylvania are mentioned with disapproval and dissent. (Henry v. S. P. E. E. Sup. Ct. Cal. Aug. 2, 1875.) " It is said that the nonsuit should have been granted, inasmuch as the fire was not kindled in plaintiff's field, but in the field of one Cagney, an adjoining pro- prietor, from which it extended into the field of the plaintiff. The legal proposi- tion involved in the foregoing statement is, that if by negligence a fire shall commence on the premises of one proprietor and spread from thence to those of another, the latter shall never have his action against hiju guilty of the negli- gence. AVe think this proposition cannot be maintained; to refute it, it is not necessary to establish the counter proposition, that the adjoining proprietor thus injured shall always recover; it may be assumed, perhai^s, that a city fire which has its origin in one building will not ordinarily extend throughout a block, and yet a jury may be justified in saying, Avlien a fire is started in a field which constitutes a portion of a larger tract of dry grass or corn fully ripe, that it will usually be driven into another field, from which the first is sejiarated only by a fence of boards. It is a rule, applicable to all eases of mere negligence, that the wrongdoer is liable for proximate and not for remote consequences of his fault." "AVe are still confident, considering the long, dry season of California, and the prevalr-nce of certain winds in our valleys, that it may be left to a jury to determine whether the spreading of a fire from one field to another is not the natural, direct, or proximate consequence of the original firing." 87 INJURY BY FIRE. § 7G pi'iulcnt man in the ordinary conduct of his affairs. Thus, if it is negligence for a railroad company to leave dry grass and rub- bish to accvmiulate upon the road-bed and the adjoining lands of the company, it is not clearly apparent why it is not also negli- gence for the farmer to })errait such accumulations to occur on his premises, immediately adjoining, and subject to the same casualty, and be such contributory negligence as to prevent a recoveiy by him of damages for loss by fire so occasioned.^ That one may so use his land as though there was no railroad 1 ""NAHiore tlie earelessuess of the plaintiff, as well as tliat of the defendant, oiierated directly to produce the injury complained of, the plaintiff has no right to recover ; and, in a case where the defendant is entitled to and requests a charge to that effect, the refusal or neglect of tlic (,'ourt to so instruct tlie jury, in unambiguous terms, is error, for which a judgment in favor of the plaintiff will be reversed." (R. R. Co. v. Kiechbairns, G3 111. 119.) Dissenting opinion of Paine, J., in Kellogg v. C. & N.W. R. R. Co. 2(3 ATis. 241, in which it is said that, as it would be but little trouble for a fanner to plow a few furrows next the line of the road, and to do so would furnish a cheap and natural preventive to the spread of lire; and so soon as it is established to be negligence in a railroad com- pany to leave the dry grass and weeds upon its lands — because, if a fire should occur, it might run across the adjoining owner's stubble-field, and reach his buildings — it follows necessarily that, if plowing a narrow strip on those fields would prevent the loss, and he, after knowledge of the danger, neglects to i^low it, he should be held guilty of a want of ordinary care. To say that he should have taken that precaution does not deprive him of the ordinary or beneficial use of his property. It does not impose on him any burden or serious inconve- nience. It is iisual for farmers to jilow their land in the fall. Plowing is an ef- fectual preventive of the sjiread of lire, and it could hardly be matter of serious consequence to a farmer whether he i^lowed a strip sufiicient for this purpose at one time or another. To determine the degree of negligence in snch cases, re- gard should be had to the facility and effectiveness of the means of prevention which the jiarties respectively possess ; and I think it more clear that an owner, whose buildings are only endangered by reason of the liability of fire to run a half mile across his stubble-fields to reach them, is guilty of negligence if he neglects the simple i^recaution of plowing a strip sufficiently wide to iirevent it, which he might do without any serious burden or inconvenience, than that the railroad company was negligent in not removing the entire dry grass and weeds upon its line, which, as already suggested, could only be done at so great an ex- pense as to make it really impracticable. (Henry v. R. R. Co. 30 Vt. 038 ; Norris V. R. R. Co. 28 Vt. 99 ; Horstman v. R. R. Co. 18 B. Mon. 218.) The propositions are not Avholly void of merit that farmers along the line of railways cannot, without negligence, make precisely the same uses of all parts of their land, which might be made without negligence in lands remote from such roads ; that persons who enjoy the advantages of these new agents of civ- ilization must bear the burden, in part, of the increased care required to guard against the dangfers which they necessarily create ; and that the compensation paid by the railway company for the right of way must be assumed to have in- cluded payment for such increased care on the land-owner's part. (i\jngell on Carriers, 489 ; Babcock v. R. R. Co. 9 Met. 553 ; Xorris v. R. R. Co. 28 Vt. 99 ; Boothby v. R. R. Co. 51 Me. 318 ; R. R. Co. v. Parramore, 31 Ind. 143.) J; i I INJURY BY FIRE. »S adjoining, and no danger reasonably to be apprehended from fire from locomotives, does not appear to be wholly consistent with the rights of the company to use fii'e upon their engines, it being conceded that if the company use all the best appliances to prevent the escape of fire, and are careful and prudent in the management of their engines, they are not resjx)nsible for damages which occur, notwithstanding the exercise^ on the part of the company, of all due precautions. § 77. Fanners not compelled to guard against fire. — The general tenor of ruling by the Courts, of late years, has been to the effect that farmers whose lands lie near to or adjoining rail- roads may cultivate and use them in the manner which is cus- tomary among their neighbor, and may recover for damages caused by fire from sparks or coals from passing locomotives^ although they have not plowed up the stubble of their grain- fields, or burned over the lands, or })lowed strips of land adjoin- ing the track, or taken other imusual means to guard against negligence on the part of the company. It is not negligence — such as would bar an action for recovery against a I'ailroad company — for a farmer to leave the grass and stubble standing on his pastiu'c or grain-field, along the side of which is a rail- way track. When the fire is lighted on his land by sparks from an engine, the farmer cannot stand by and let it burn without doing what he reasonably may to protect his property ; but where the danger is not seen, but is only anticipated as a possibility merely, or is dependent on the continuance of an ob- served negligence on the part of the railroad employees, the farmer is not bound to protect himself by unusual precautions, such as plowing, burning over, or otherwise. One wlio is in the exercise of his lav\-ful business has a right to presume that other persons Avill so conduct their business as not to interfere with or injure him, and it is not negligence for such a person to assume that he is not exposed to danger which can only af- fect him through a disregard of law on the part of some other person or a railroad company.^ 1 Flinn v. S. F. & S. J. R. R. Co. 40 Cal. 14. In this case, tlio plaintiff "vvas in possession of a piece of land, one portion of which was cultivated in wheat, and another portion was used for pasturage. At the time of the injury complained 89 INJURY BY FIRE. § 77 of, the wheat had been cut, and stood in stacks on the land where it had hcon grown. The stubble on the grain land and tlie grass on tlie pasture were very- dry. There were no furrows plowed, or land in any way cleared from inflam- mable material in the field along the line of the lands of the railway. The grass and weeds along the railroad had been cut and left upon the ground, and had become very combustible. The dt^fendant's engines were provided with the best and most approved apparatus for preventing the escape of sparks ; but as a construction train passed along plaintiff's lands, the engine dropped sparks, which ignited the grass and weeds along the trat-k, and a lugh wind swept the fire through the fence, over the jiasture land and stubble-field, to the grain- stacks, and the stacks were entirely consumed by the fire. In the action against the company for the damage done, the Court below held that, although tlie com- pany was at fault in the condition of its road, the plaintiff himself was at fault in failing to take ordinary precautions to i^revent fire, which might unavoidably break out fi'om spreading to his wheat-stacks ; that this neglect of iilaintiff con- tributed to tlie injury complained of, as mucli as the negligence of the defend- ant in omitting to clear its road of the weeds and grass wliicli had been cut upon it, and that, therefore, no recovery should be had. The Supreme Court, how- ever, held this ruling to be error, and, because of that error, reversed the judg- ment, saying : "No one is required to take any precautions against unavoidable or inevitable accidents ; for the precautions which could not avert the injury would be futile. Nor is the ignition of combustible material lying on the track of a railroad, by sparks dropped by a passing engine, unavoidable accident. The removal of the combustible matter from the road is an obvious and sure precaution. The rule releasing the defendant from responsibility for damages, because of the negligence of the plaintiff, is limited to cases where the act or omission of the plaintiff was the proximate cause of the injury. The negligence in this case, which was the proximate cause of the destruction of the plaintiff's grain, was the leaving of the dry grass and weeds upon the raih'oad, where they were liable to be set on fire by sparks falling from passing engines. It was not negligence, in a legal sense, for the plaintiff to leave the grass and stubble standing on his pasture and grain-field. He was not required to destroy or re- move either, in order to obviate the consequences of the possible or even prob- able negligence of the defendant." Richmond r. Sacramento Etc. R. R. Co. 18 Cal. 357. Tuff V. Warman, 5 C. B. N. S. 573 ; Fitch v. P. R. R. Co. 45 Mo. 322. "If the conduct of a railroad company's agents was the inunediate cause of fire sjireading from a locomotive, and if, with the exercise of prudence and the use of proper appliances on their part, the result might have been prevented, the company is not excused from liability by some remote negligence in the plaintiff ; such as that he carelessly left grass in the fence-corners adjacent to the road, whereby the fire was kindled. Such carelessness, not being, the i>roximate cause of the loss, is not contributory negligence which will excuse the com^iany." Robinson v. W. P. R. R. Co. 48 Cal. 409 ; Cleveland v. R. R. Co. 8 O. R. 570 ; Shearman & Eedfield on Negligence, 29. 2 78 INJURY TO STOCK BY KAILROAD. 90 CHAPTER VI. DAJVIAGE TO LIVE-STOCK BY EAILKOiUJ CARS OR ENGINES. § 78. Liability of railway for injury to animals. § 79. Contributory negligence by owner of animals. § 80. The owner of animals must take due care of them. § 81. Damage by locomotives to animals running at large. § 82. Collision with live-stock where the railway company has right of way. § 83. Contract to fence by railroad company with land-o^vne^. § 84. Responsibility of railroad comi^anies to the public. § 85. Burden of proof of negligence when animals are injured by locomotives. § 86. First duty of railway companies to guard their trains. § 87. Railway companies may regulate s^^eed of trains. § 88. Laws as to collision A\'ith animals are not for the benefit alone of tho o^vne^ of Ua' e-stock. § 89. The duty of railway companies as to gates and other openings in fences. § 90. Reasonable diligence only requii-ed in keeping gates closed. § 78. Rail-way companies liable for injury to animals. — The general rules as to the liability of railroad companies for damage by their trains or engines running into live-stock, to be deduced from the great number of decisions, may be stated, in substance, to be that, when the owner of the animals can shoAV that they were properly upon the track, so far as he was con- cerned ; or, differently stated, that it was through the neglect of the company ^ that they got upon the roadway, the company 1 4 Jones' Law, 524 ; Toaatis v. Cheshire R. R. Co. 1 Foster, 3G3, in which is in- voked the common-law rule that the owner of animals is bound to fence them in, and the rule is held applicable to actions against railway comi^anies, citing the leading case on the rule, of Rust v. ^M\y, (> Mass. 90. It is to be observed, however, that in many of the States the common-law rule is held never to have been adopted as part of the law. 1 Redlield on Railways, 4G4-5: "For instance, if an animal escape into the highway, and thus get upon the track of the railway, where it intersects with the highway, and is killed, the company is not liable. And if the animals are tres- passing upon a field, and stray from the field upon the track of the railway, thnjugh defect of fences, which the company are bound to maintain, as against tlie owner of the field, and are killed, the company are not liable, either at coramon-law or the English statute, or upon the ground that the defendant ex- ercised a dangerous trade. The obligation to make and maintain fences, both 91 INJURY TO STOCK BY RAILROAD. § 78 is liable ; and so, if being upon the track they are seen by the engine-driver, and he wantonly runs into them, when, with reason- able care, he might have avoided the collision, tiie company may be held responsible for tlie damage done.^ The decisions u[)on these propositions are not quite uniform in their tenor, but are generally to the effect, substantially, that the company is exempt from liability where it is free from neg- lect of duty in fencing, or, by proper cattle-guards, preventing animals from getting in the way of trains.^ But if the company is bound to maintain fences, as against the owner of the animals injured, and fails to do so, and through neglect of this duty, by absence of or defect in fences, the ani- mals get upon the road, the company must make good the loss wdiich occurs by reason of this neglect.^ at common-law and under the statute, applies only as against the owners or oc- cupiers of the adjoining close." (Ilicketts v. E. & W. D. Co. 12 C. B. 108; Jack- sou r. R. R. 25 Yt. 150.) 1 A railroad company is liable, on ground of negligence, for injury to live stock, througli an engineer's want of ordinary care and skill, although the same were wrongfully upon the track. (Toledo R. R. Co. v. Brag, 57 111. 514; Rock- ford R. R. Co. V. Lewis, 58 111. 19; T. R. R. Co. v. Ingraham, 58111. 120; C. R. R. Co. V. Smith, 22 Ohio St. 227.) " In an action to recover the value of cattle alleged to have been killed on de- fendants' road by their locomotive and train, it appeared the cattle could have been seen on the track by the engineer, if he had been on the look-out, for a distance of more thau half a mile; yet he made no effort to slacken the sjieed of the train. Held, it was gross negligence, for which the company should be held responsible, even though the cattle were upon the track without the fault of the company." (C. Etc. R. R. Co. v. Baine, 55111. 220; M. Etc. R. R. Co. v. Maloue, 46 Ala. 3 t«» what iR-j.^liL:ence in guarding his stock will vitiate the owner's claini for ihimages for injury done to them by raih'oad trains or engines, the well settled principle of the common law, that a jiiaintiff is not entitled to recover for injuries to which his own fault or negligence has directly contributed, ap- jK'ars to apply.' It is true that local statutes seem to control, if not in some instances to abrogate, the application of it ; but tlu' general tenor of decisions construing these statutes is such li* to hold tlie (jwncr of the stock responsible for his own care- lessness except where, in terms, the statute jirovides that the company shall be held liable at all events and without reference to any fjucstion of negligence, either on the part of the company or that of the owner of the animals.^ The general result of these laws has been held to be to leave the (ptcstion of the effect of the conduct of the owner of the animals up(»n his right to recover for the acts of others where it Willi at the common law. But the onus of proof is changed by the statutes, so that where stock is killed the laws impute negligence to the company, unless it can show that the damage wa> tlie result of unavoidable accident.^ lnjur>- wiis donf at a iMiint wliore the company luirt the riglit to fence and had t»ol fi-m«>id, 402.) " So the neglect of a rail- road company to build a fence, does not exonerate the plaintiff from the obliga- tion to take ordinary care for the i^rotection of his animals, where the fence, if built, would not have been svifficient to close access to the track. If the i^laint- iff 's negligence was the direct and proximate cause of the injury, the defendant shovild have the benefit of that fact, notwithstanding its neglect, since its care would not have sufficed to prevent the injury from occurring." In New York, it has been held that the statiites compelling railroad com- panies to fence do not make them insurers against accident by running into cat- tle and causing injury to them thereby ; but their liability in such cases is a ques- tion of neglect of duty. (Murray v. R. R. Co. 3 Abb. (N. Y.) App. Dec. 339.) "The general rule, that when cattle or other stock are permitted to go at large, in i;ninclosed woods and fields, the o^vner of siich stock takes the risk of their loss or injury by imavoidable injury, applies when stock is permitted to range in proximity to passing railway trains, and to wander on the uninclosed track of a railway." (Memphis R. R. Co. v. Blakeny, 43 Mis. 218; Ruiford v. M. R. R. Co. Id. 238; U. P. R. R. Co. v. Rollins, 5 Kans. 107; Lock v. St. P. R. R. Co. 15 Minn. 350. ) But the mere fact that an animal is at large by the "permission of the owner, and is run over and killed by a locomotive, does not justify the con- clusion that the injury was occasioned by the willful act of the owner; and in an action against the railroad company to recover for the loss of the animal, the burden of proof to show a willful act on the part of plaintiff rests on the rail- road company." (Stewart v. R. R. Co. 32 Iowa. .501. ) § 81 IXJURY TO STOCK BY RAILROAD. 94 to the effect that railroad companies sluill be held responsible for all such losses, and the Coui'ts have no power by inquiry into collateral issues to vary the terms of the hiw.^ § 81. Damage by locomotives to animals running at large. — The right to pasture common or unincloscd lands ap- pears to be subject to the right of railroad companies to run their trains through such lands over a roadway not fenced, where there is no absolute statutory provision requiring that railroads should be fenced when passing through uninclosed lands ; and so where parties themselves may, but fail to do so, bind the company to fence in the absence of statutory provision compelling such action, it is negligence on the part of the owner of animals to allow them to run at large in the vicinity of the railway ; and for damages Ijy trains running into his stock the owner cannot recover, where the common-law rule as to fencing in cattle is in force ;^ and even where the statute imposes upon 1 Under the Indiana statutes, a railroad company is liable for stock killed or injured at a point where it is required to fence its track and has not done so, without reference to the question of fault on the part of tlie plaintiff, or negligence on the part of defendant. (Jeffersonville E. R. Co. v. Ross, 37 Ind. 545; Ohio & :M. R. R. Co. r. Miller, 46 Ind. 215.) But it is essential to the lia- bility of the railroad company, for the death or injury of an animal, that it should 1)0 actually touched by the engine, cars, or other carriage. (Ind. Etc. R. R. Co. V. McBrown, 4(j Ind. 229.) So, in California, the road being unf enced, the company miist bear the loss by damage to cattle. (McCoy r. C. Etc. R. R. Co. 40 Cal. 532; Brooks v. N. Y. & E. R. R. Co. 13 Barb. 594; Lafferty v. R. R. Co. 44 Mo. 291; JeffersonAille R. R. Co. V. Avery, 31 Ind. 277. ) 2 Tlie general rule, under the common law of England, is that a railroad' com- pany, like any otlier proprietor of land, is under no obligation to fence its road, and trespassers come there at their peril. (Shearman & Redfield on Negligence, 531 ; N. Y. &E. R. R. r. Skinner, 19 Penn. St. 298; North P. R. Co. r. Reliman, 49 Penn. St. 109 ; Coy v. Utica R. R. Co. 23 Barb. G43 ; Williams v. U. R. R. Co. 2 Mich. 259, where a railroad company, which was not obliged to fence unless re- quested to do so by the land-o^\nier, agreed with an adjoining owner not to fence at^ainst his land, and a cow strayed from such lands upon the track of the road, and was killed by one of their trains. Held, that the owner of the cow, having by his own fault contributed to tlie loss, could not recover of the company. (Towni V. P. Etc. R. R. Co. 2 R. I. 404.) And such would appear to be the rule even where by the common law cattle are iiermitted to run at large. Railroad companies are not bound by common law to erect fences to keep out cattle. (Shearman Tier, thus bound to main- tain the fence, is in no better position to maintain the action than the proprie- tor." (Toombs V. R. R. Co. 18 Barb. 583; Duffy t>. R. R. Co. 2 Hilt. 496; Cine. R. R. Co. V. Waterson, 4 Ohio St. 424.) 4 Shearman & Redtield on Negligence, 4(53; Terry v. R. R. Co. 22 Barb. 574; Eastern. R. R. Co. 14 Ohio St. 48. "T, T)y deed, duly recorded, conA'eyed to a railroad company the right of way, as the road was locatcnl; and coA-enanted for himself, his heirs and assigns, to ereot and maintain a fence on each side of the right of way. T subsequently conA^eyed the land, tlirougli which was the right of way, to H, by deed in fee, and 1% a timant holding under H, brought an ac- tion against the company for killing his horse, it being on the track where it passed through the land, and no fence having been erected, by the negligent running of the engine. Held, that the assignee of T Avas so far affected by the oov(!nant in the grant that he could derive no advantage by its breach, and that he could not claim from the railroad company a higher degree of care to aA'oid injury to a horse being on the track through the land, than if the coA'enant had been kept." 99 INJURY TO STOCK BY IlAILKOAD. § 84 notwitlistandlno; pucli covenant, it was the duty of the company to sec tlie fence built, and, failino^ in that, they are liable. ^ But the j^eneral tenor of the authorities is to the effect that the pr()])rietor of the land may legally bind himself to build and maintain the fences; that such a contract may be made a covenant, ninning Avith the land, and bind his successors in in- terest and their tenants, and tliat such is the law is claimed by the best of the modern text-writers.^ § 84. Railway companies responsible to tlie public. — Railroad companies cannot so change their liability by con- tract Avith the owner of land adjoining the roadway as to avoid the responsibility for damages by injury to domestic animals which belong to strangers to the contract; and no agreement or act of a land-owner in relation to fences is a defense to an action brought by a third party, who is not in priority with such land-OAvncr.^ The statutes by which is imposed upon railroad companies the duty of maintaining fences and cattle-guards are enacted for the benefit of the owTiers of domestic animals, which are liable to stray upon the road-bed, and this responsijjility cannot be shifted by the company in such manner as to deprive the por- tion of the community who have live-stock, of the protection to their property by such statutes as will tend to render the own- ers of such other property as railroads, and the trains running on them, especially careful to guard against doing damage. The benefit of the American statutes is generally not confined to owners or occupants of land immediately adjoining a rail- road, but extends to all owners of domestic animals."* And the company can no more avoid its responsibility ]>j contract with the adjoining land-owner than it could by employing a party to do the work of fencing, and, on his failure to do his work, throw on him the direct responsibility to the person who has suffered by his neglect. 1 Shepherd v. R. U. Co. Z5 N. Y. CAl. 2 Shearman & Kedfield on Negligence, 403. 3 Corwin v. R. R. Co. 13 N. Y. 42; Jeirersonville R. R. Co. r. Nichols, ".0 Ind. 321. 4 Ind. R. R. Co. V. Meek, 10 Ind. 502 ; Brown ?>. R. R. C:o. 12 Gray, 55 ; Ind. R. K. Co. V. Townsend, 10 Ind. 38 ; Fawcett v. R. R. Co. 16 Q. B. GIO. § 85 INJURY TO STOCK BY RAILROAD. 100 The 8tatiitory rc(|iiircmciits under which raih-oad companies aiv iiorniitti'il to exi.lc to injury, and not only the owner of live-stock, but the traveling public is interested in the strict enforcement of the laws rc(|uirini; railroad companies to fence.-' § 85. Bmden of proof as to negligence. — As to what is iK'<;lit;fncc on ihc pari uf tlie owner of live stock sufficient to pre- vent his recover}' from the railroad company of damages for their injury by passing trains, and Avhat may be deemed negligence on the part uf the railroad coujpany or its employees of such a character as to make the corporation legally respons- ible for damage by collision with domestic animals, have been subjects of considerable discussion in the Courts. Apart from legislation 1)y wliich statutory provision has been made, the fact of domestic animals being killed or injured by the companies' engines or trains is not prima facie evidence of negligence such as will charge the railroad company. ^ A dis- > Shearman & Redfield on Negligence, 401 ; Chicago Etc. R. R. Co. v. Triplett, as III. 482 : Cliirago R. R. Co. v. McLaugUlin, 47 HI. 2G5 ; Cliicago Etc. R. R. Co. r. Stumps, 5.5 III. 3n, :;8 HI. 424; 1 Redlield on Railways, 404. "The decisions upon ilu- hul.jtft of injuries to domestic animals by railways are very numer- «ii*. Injt may Ik; reduced to a comparatively few principles. Where the owner of (lin nnimal.s is unahle to show that as against the railway they «r«M,f tJuit liorsesor cattle were killed by a train is sufficient •nee of negljgcuc,. on the part of the railroad company. This •re the eonunon law of tlu; State binds the railroad company to '"" ""^ where th.. English common-law rule prevails, the plaint- "" " 'titer evidence than thiH to make out a prima facie ease. The 101 INJURY TO STOCK BY EAILROAB. § 85 tinctlon lias been made, in this respect, between injuries to pci'- manent property situated along the line of the railroad, such as injury to buildings by fire communicated by the company's en- gines, and damages to cattle which are constantly moving from place to place,^ But the general rule appears to be applicable, that all persons are bound to so conduct their business as to avoid doing injury to persons other than themselves, who have an equal right under the law to pursue their avocations, and the running of railroad trains must be so conducted as to avoid col- lisions with animals, where due precautions could prevent them. As to what are proper precautions, the observance of Avhich would negative the charge of negligence, is a question of fact, burden of proof is iipon the plaintiff to show that the cattle were lawfully there, and that the railroad comjiany was negligent. And, if the cattle were not lawfully there, he must prove such negligence as will nevertheless make the <;omi3any liable. Even where cattle may lawfully run at large, the South Carolina rule is not followed ; and the plaintiff must prove some act of negli- gence. If the statutes concerning fences are relied upon as the ground of the action, the plaintiff must prove the want of or defect in a fence. (Scott v. R. R. Co. 4 Jones' [N. C] Law, 432; Jones v. R. R. Co. 67 K C. 122; Belief. Etc. R. R. Co. V. Schruyhart, 10 Ohio St. 116; Ind. Etc. R. R. Co. r.Wliarton, 13Ind. 509; R. R. Co. V. Brown, 23 111. 94; R. R. Co. v. Sumner, 24 Ind. 631; Walsh r. R. R. Co. 8 Nev. 110.) "In actions for damages, arising from alleged negligence, the burden of proof is on the plaintiff." (Owens r. R. R. Co. 58 Mo. 388 ; Norton v. Itner, 5G Mo. 351 ; McDonnel v. R. R. Co. 115 Mass. 504.) And "a railroad corporation is not liable for killing animals, which, being un- la'W'fully upon a lot of land, go thence upon its track, and are there killed by a liassing train, although it was the duty of the corporation to maintain a fence between its track and said lot, and it did not do so, iinless the killing was wan- ton or malicious." (Id.) Comstock V. R. R. Co. 32 Iowa, 376 ; biit see McCoy v. R. R. Co. 40 Cal. 532, where the converse of the proposition is held to be law. So in Macon Etc. R. R. Co. V. Baber, 42 Ga. 300. 1 Scott V. R. R. Co. 4 Jones' Law, 433; Ellis ?;. R. R. Co. 2 Ire. 138; Piggot v. R. R. Co. 3 M. G. & S. (54 E. C. L. ) 229; Herring v. R. R. Co. 10 Ire. 40S. The language of the opinion of this last case, commenting uiwn the two preceding ones, is : "In both cases, fire was communicated to the property of the plaintiff— in the one case a barn, in the other a fence, was set on fire by sparks from the cars. It was proven in both cases that the cars had been running for a long time without doing any damage, and, things remaining in the same condition, the fact that fire was communicated on a particular occcasion was properly held to be prima facie evidence that it was the result of negligence." The opinion then proceeds to point out the distinction between a barn or fence, which is stationarij, and an animal, which has the power of locomotion, and the conclusion is that, in respect to the latter, the principle has no application, because things do not remain in the same condition, and the presumption of negligence in running into an ani- mal because it had never been run into before does not arise because the animal would not have before been where it could have been run into. § 86 INJURY TO STOCK BY RAILROAD. 102 controlled to a considerable extent by statute, and is a matter of fact for consideration of the jury,^ except Avliere the proof is all one way, either in favor of or aguinst negligence, in which case the infeivucc is always one of laAv for the Court.^ § 86. First duty of railway companies to guaid their trains. — It Is the paramount duty of a railway company, in the conduct of its trains, to care for the safety of persons and prop- erty traveling and being transported over their road ; this duty is to be first regarded, and subordinate to it is that of avoiding imnecessary danger to animals straying upon the road.^ 1 Toledo Etc. R. R. Co. v. Bray, 57 111. 514 ; Rockf ord Etc. R. R. Co. v. Bray, 58 III. 49 ; Cine. Etc. R. R. Co. v. Smith, 22 Ohio St. 227 ; Gilnian v. E. R. Co. GO Me. 235 ; Smith v. R. E. Co. 34 Iowa, 9G; Keliher v. R. E. Co. 107 Mass. 411 ; Sa\^Trcr v. R. R. Co. 105 INIass. 19G ; Memphis Etc. R. R. Co. V. Blakeney, 43 Miss. 218 ; Bemis v. R. R. Co. 42 Vt. 375. "The liability of a railroad company for the killing, by a train, of an animal Avliich ■^^Tongfully strayed upon the track, depends on the question whether the engineer of the train used ordinary care to avoid doing injury. And this Mo. 441.) "It is the law in England, and in some of the densely populated States in this Union, that the o\^Tiers of cattle shall keep them inclosed, and if they stray therefrom they are tresj^assers, and the owners are guilty of negligence. But such is not and never was the common law in Missouri. It is oiiposed to the policy of the State in its present condition, and whenever it has been attempted to be enforced, it has met with resistance and condemnation." (McPheeters v. H. & St. J. R. R. Co. 45 Mo. 26. ) "Ko conviction has more thoroughly occupied the public mind than this, and nothing woidd sooner arouse the attention of the community than tlie appre- hension that the old rule of the common law was to any extent to be revived. As early as 1808, the act for regulating inclosures became a law, and from tliat time the j^eople have rested in the belief that they incurred no responsibility and were guilty of no fault or negligence toward others in turning loose tlieir cattle, unless when their cattle tresi^assed upon lields inclosed in the manner prescribed by law. An injury to cattle, imless tresjiassing upon lii!lds legally in- closed, was redressed without any inquiry whether the cattle, when they re- ceived the injury, were on the land of the owner or that of the individual com- mitting the A\Tong." " The range, as it is called, is a source of wealth to many of our citizens, and nothing would induce them more resolutely to oppose tlie lo- cation of a railroad in tlieir vicinity tlian the knowledge that it would impose on 107 INJURY TO STOCK BY RAILROAD. § 88 ing therefrom, there being primarily no obligation on the part of the OAvncr of live-stock to iiu;lose them, persons on whose premises they might stray are obliged to protect themselves from their incursions. From this reasoning, it would appear that where the common-law rule docs not control, the company, apart from statutory provision, is compelled to fence or pay for the loss of cattle which, by reason of its not fencing, get up(jn its roadway and arc run into, unless it appears that the accident coidd not have been avoided by the exercise of ordinary care, reference being had to the circumstances,^ and the burden of })roof gen- erally is upon the plaintiff to establish negligence, where the statute does not, in terms, make the fact of the collision prima facie evidence thereof.^ tliem the obligation of keeping their cattle and stock in inclosures. That obli- gation would not be confined to those in the immediate neighborhood of the road, for cattle, when not confined, frequently stray much further than would be supposed by those not acquainted with their habits. Many farmers have a sufficiency of uninclosed land for the pasturage of their cattle. Shall they be bound to inclose it at a jieril of a suit for an injury caused by their cattle which may cost them their estates ? The other interests of the State are not all to be made subservient to the railroad interest. That interest enters into competition with other jiursuits, with the advantages and privileges the law confers upon it, but there is nothing in it of so over-shadowing a character that all other pur- suits must yield to it. There are none who are not imjiressed with the import- ance of railroads, and their great utility as the medium of intercourse and com- merce. Ko State that will keeii i)ace with the age but must build and encour- age them. But we should be cautious how we clothe them with privileges and immunities, at the cost of the rest of the community, which may enkindle a spirit hostile to their existence and seeking its gratification in their destruction." Gorman r. P. R. R. 2G Mo. 44(>-7. But under the law of Missouri, as it now stands, a railroad company is not resiionsible for stock injured by trains when such killing takes iilace at a part on their road where it is not fenced, and where it does not pass through or along inclosed or cultivated fields or inclosed prairie lands, unless actual negligence be proven. (]Musick v. A. & P. R. R. Co. 57 Mo. i;^. ) " A railroad company is liable for injuries to stock caiised by its negli- gence where the jilaintiff has contributed to the injury no further than merely liermitting his stock to run at largo." (Searles r. R. R. Co. So Iowa, 49!).) 1 111. C. R. R. Co. V. Baker, 47 111. 295. "The mere fact that an animal is at large by the " permission of the owner, and is run over and killed by the locomotive, does not justify the conclusion that tlie injury was occasioned by the willfid act of the owner, and in an action against the railroad company to recover for the loss of the animal, the burden of proof to show a willful act on the part of the plaintiff rests on the railroad company. (Stewart v. R. R. Co. 32 Iowa, 5G1; Memphis R. R. Co. v. Orr, 43 Miss. 288; New Orleans R. R. Co. v. Field, 4(1 Miss. 573; Id. 578.) 2 Georgia R. R. Co. v. Anderson, 33 G a. 110; Georgia R. R. & B. Co. v. jNIun- roe, 49 Ga. 373; Cleveland v. Q. R. R. Co. 35 Iowa, 220. "In an action against a railroad company to recover for stock killed by a passing train, the burden is § 89 INJURY TO STOCK BY RAILROAD. 108 § 89. As to gates and other openings in fences along rail"ways, the duty of the company is to keep them eh)sed. The (hity l)y .statute imposed upon railroad companies to buihl fences ah)ng' tlie sides of tlieir roadway, so as to ])revcnt animals from straying upon the track and being injured, in con- junction with the further obligation, which, in certain cases, is imposed upon them, of making such crossings as will permit farmers to get, with their wagons or live-stock, across the track, makes a necessity for gates or bars in the fences, and the ques- tion of how far the company can be held liable for injury to domestic animals which get upon the track by reason of these gates being left open, or bars down, may become matter of intei-est. The general rule deducible from the authorities is, that if such an opening in the fence is left as that cattle may stray upon the track, Avhether it be by gate or bars, with the consent of the company or without it, and the same is left open an unrea- sonal)le length of time, the company is liable for injuries to live- stock which may enter througli the breach upon the roadway and track, after the agents and employees of the company have had reasonable time to shut the gate, put up the bars, or otherwise close the opening.^ Nor does it make any difference that none of the employees of the company became aware of the fact that the fence was broken, bars down, or gate left open ; it is the duty of the company to not only build, but maintain, the fences prescribed by the statutes, and for dereliction in the performance of that duty the company is liable.^ While the upon the plaintiff to show either that the killing or injury was clone at a jioint where the company had the right to fence and had not fenced, or that the company were guilty of negligence in causing tlie injury." (Comstock r. 11. R. Co. 32 Iowa, 370.) 1 McDowell r. R. R. Co. 37 Barb. 195 ; Munch v. R. R. Co. 20 Barb. 047 ; Brown V. R. R. Co. 21 AYis. 39; Chicago Etc. R. R. Co. v. Reid, 24 HI. 144; Bartlctt r. R. R. Co. 20 Iowa, 188; Ind. Etc. R. R. Co. r. Snelliug, 10 Ind. 435. "But a railroad company is not liable for stock killed on their track, unless they have actual or implied notice that the fence was doA^ni, or the gate ojien, and a reasonable time tliereafter to put the same in jiroper condition." (Ayles- wortli 1-. R. R. Co. 30 Iowa, 459 ; Dewey v. R. R. Co. 31 Iowa, 373.) 2111. C. R. R. Co. r. Arnold, 47 111. 17.3. " AVhere a cow entered the close of another tlirough an iusuflkient fence upon the highway, and jiassed from thence througli a space; made for bars, and used as a farm-crossing, upon the railroad track, and was killed, and it was proved that tlie bars had l)etii left down for a perioVl 109 INJURY CY FIRE. § 90 companies arc not required to keep such guard over their roads as would Immediately make them aware of a breach as soon as it occurs, and immediately to close It, still the law Is such as to impose upon the corporation the obli<^ation of keopinji; employed such a number of men, to be over the roadway dally In such manner as to discover breaches and openings In their fences, and close them before danger results from the breach or opening, allowing animals to get In the way of trains.^ Where the defect or opening In the fence results from the neg- ligence of the owner of the stock injured, the company cannot justly be held responsible.^ § 90. Reasonable diligence only is imposed on railroad companies in keeping gates shut at farm-crossings. While the law does impose upon railway companies all reasonable dili- gence in maintaining their fences, It requires of them no more than reasonable and ordinary care in the matter of so keeping up their fences, the gates closed and bars up, as that cattle will not be likely to get in upon the roadway. They are allowed sufficient time to repair damages to their fences, occurring by storms or other causes, and are not called upon to exercise cxtraordlnaiy care or diligence In the premises, such as the of tliree months : held, that tlie statute required the railroad company to ' erect and maintain ' a sufficient fence, of -which the bars were a part, and that the company were guilty of negligence for allowing them to remain do\vn for so long a time." (Great W. E. K. Co. r. Helm, 27 111. 190.) 1 Chicago R. R. Co. v. Harris, 54 111. 528. " In an action against a railroad com- pany to recover for injuries to horses inflicted by a train on defendant's road, where it appeared that the horses passed upon the track through an open gate at a farm-crossing, the company, having permitted the gate to remain open for a week previous to the accident, were regarded as guilty of such negligence as ren- dered them liable." " A gate in a fence, which the defendant is bound to keep in r(>pair, is to l)e regarded as a part of the same." (Eates v. R. R. Co. 63 Me. 308.) 2 Shearman & Redfield on Negligence, 459; Poler v. R. R. Co. IG N. Y. 47G; Perry ti. R. R. Co. 3(3 Iowa, 102. "A railroad company is required to use reasonable care and diligence in keeping up bars leading through the fence inclosing its right of way, and if, by reason of its failing to use such care, stock passes on to its road and are injured, it is liable in an action therefor. But it would not be liable for such injuries if th(; bars through which the cattle passed on to the track had been left down by the plaintiff or a third person, unless they had continued for such a length of time or under such circumstances in this condi- tion as to justify the inference of negligence on the part of tlie company in not seeing and putting them up." (111. C. R. R. Co. v. Arnold, 47 111. 173.) § 90 INJURY BY rillE, 110 maintenance of guards through the night to prevent injuries to their fences, and, if the fence is generally sufficient, the fact that in one place it is not so as to turn stock is no proof by itself that the injury resulted from the company's not having repaired the Aveak spot or closed the gap ; the burden of proof that the neglect of the company is the cause of the injury being on the party complaining of the injury, he must show that the animal got through the gap or over the weak place, the value of the testimony of the existence of such gap or weak spot be- ing for the determination of the jury.^ 1 Shearman & Redfiekl on Negligence, 4G1. " Only reasonable or ordinary dili- gence is required of railroad companies in tlie maintenance of their fences. They are allowed a reasonable time for repairs, and are not bound to keep watch all night, for example, to guard against injuries to their fences. If within such reasonable time tlie fence is repaired, the company is not liable, imder the statute, for cattle entering through the lireach. If the fence is for the most part maintained, but is defective in particular places, the owner of the injured cat- tle must give some -pvooi that they entered at a defective part of the fence." (Lemon v. R. R. Co. 32 Iowa, 151; Chicago Etc. R. R. Co. v. Barrie, 55 111. 22G; 111. C. R. R. Co. r. Dickerson, 27 111. 55; ]\lorrison v. R. R. Co. 32 Barb. 5G8.) But in some States a hi(/h degree of diligence is required. (Antisdel r. R. R. Co. 2;> AVis. 145.) The latest cases, however, are to the effect given in the text. (Perry v. R. R. Co. 3G Iowa, 105.) "Having built the fence as the law requires, the leaving of bars therein down by some third person, and tliat through them cattle have strayed upon the track and been injured, does not make for plaintiff a prima facie case. He must go further, and show that the defendant was guilty of negligence in permitting them to remain down. Having built the fence as the law requires, the leaving of bars therein Aovm by some third person, over whom defendant has no control, is not an act wliich renders defendant liable. That liability, if it exists at all, arises from its conduct after the bars were left down, either in failing to put them up, after acquiring knowledge that they were down, or in neglecting to use reasonable diligence to ascertain such condi- tion. And the burden of proving these facts is upon plaintiff." (Aylesworth V. R. R. Co. 30 Iowa, 459 ; Muldowney v. R. R. Co. .32 Iowa, 17G.) And it is to be observed that, in some of the States, where the common-law rule as to keeping animals within inclosures jirevails, a railroad company is not liable for animals injured by its trains where tlie animals were not lawfully in the land adjoin- ing the roadway and thence got upon the track through a gap in the fence. (McDonnell v. R. R. Co. 115 Mass. 5(34. ) Part in. ANIMALS. 113 HIRE OF ANIMALS. § 91 CHAPTER VII. HIRE OF AXIMiVLS. § 91. Contract of hire of animals. § 92. Special covenants by the; letter of animals. § 93. "Warranty tif title impli(!(l by letting animals. § 9i. The hirer of animals must feed and care for them. § 95. Extraordinary expenses incurred in care of hired animals. § 9(). When hired annuals are stolen, loss falls on owner. § 97. Negligence sufficient to charge hirer for loss of animals. § 98. Hirer of animals liable for loss from servants' negligence. § 99. Hirer of animals has a special property in them. § 100. If the hirer of animals abuse them. § 101. Distinction between hirer and borrower of animals § 102. BoiTower of animals restricted to stipulated use of them. § 91. Contract of hire of animals. — The hiring of animals implies an obligation on the part of the lessor to him who, by the contract, is to have the use thereof, that for the period of the bailment the hirer is to have the use and enjoyment of the property to the extent of the contract, and on the part of the hirer to fulfill all such engagements as by express terms he has agreed to, or are by law imposed on him. On the part of him who hires out the animals, it is in effect stipulated that he is to deliver them to the hirer; to refrain from every obstruction to the use of them by the hirer during the period of the bailment; to refrain from doing anything which should deprive the hirer of the benefit contemplated in the transaction ; to Avarrant the title and right of possession to the hirer, so that he may have the full and unobstructed use of the property, and to warrant the animals to be free from any fault inconsistent with the proper use of them, regard being had to the purposes for which they are let. The delivery of the property must be to the hirer, unless otherwise agreed; and this should be with all suitable and requisite appendages and equipments, in view of the purposes Farm— 8. ' §§ 92-93 HIRE OF animals. 114 of the hirer in taking the same ; as, if a horse is let to ride, it shoultl also be with a suitable saddle and bridle.^ § 92. Special covenants by the letter of animals. — On the part of the lettor of animals, the covenants which the law implies to have been made by him are such that he must deliver to the hirer the subject of the bailment in proper condition, and with suitable equipments for the j)urposes of the service in- volved, and if he fail to do so an action will lie for a breach of the covenant. lie must deliver to the hirer the animal in the condition contemplated by the parties in making the contract, and if b-y accident, unavoidable casualty, or otherwise, the ani- mal has become injured or unsuited to the employment, the hirer is not bound to take it, but may insist upon the contract being rescinded. From principles of justice it results that the lettor should restrain from all obstructions to the hirer in the use of the property for the purposes of the bailment ; the only practical questions involved in the consideration of this branch of the subject, therefore, are Avhat amounts to such obstruction. Resumption of the property, or any other act by which the lettor voluntarily deprives the hirer of it, is a clear case of violation of duty, and so it may be said of any other act which prevents the hirer from using the same as contemplated by the parties when they made the contract ; as, if the lettor sells the property, or suffers it to be attached so that the hirer loses the anticipated use of it. In such cases there is a clear violation of his implied contract.^ § 93. Warranty of title implied by letting animals. — An implied Avarranty of the title and right of possession to 1 Story on Bailments, p. 317; Potliier Contrat do Lonangc, n. 53; 1 Domat Civil Law, by Strahan, Vol. 1, p. 204-5. This distinj^iishcd author, in liis chajv tcr on tlie Duties of the Lessor, says: "The lessor is bound to jirocure the free use and enjoyment of the thing leased, to the person to whom he lets it out; to deliver the same to him in a condition to serve the use for which it is hired; and if the lessor does not deliver the things in good condition, or such as he promised to do, tlic lessee may recover his damages; and lie will be still more entitled to this relief if tlie projirietor himself, or the person for wliom he is answerable, hinder the tenant from enjoying the jiroperty leased." 2 Potliier Contrat do Lonangc, n. 8(1, 87 ; 1 Domat, Civil Law by Strahan, p. 2G5, 15. 1, Tit. 4, Sec. 3, Art. 4. 115 HIRE OF ANIMALS. § 94 the liirer results from the p;cner;il reasoning applicable to the sul)ject. A vendor of personal [)ropcrty, which is in his pos- session at the time, by iiis sale, at a fair price, is deemed to warrant the title to his vendee ; ^ and so, having leased the same, it would appear a fortiori he agrees to maintain the pos- session which, by letting, he has disposed of for the term of the lea^e.2 This applies, of course, only to the legal claims of third per- sons to disturb the enjoyment of the hirer of the animals leased, because for any wrong doing of a third party, by which the hirer's possession is disturbed, he must look to the law for his redress against the author of the trouble. It would be, by far, too severe a rule to impose upon the lettor the responsibility of the wrongful acts of all persons against the hirer, as that would amount to a peculiar warranty of the virtue of the whole human race. For the wrongful acts of third parties the hirer has always his remedy against them, and on this he must rely.^ § 94. The hirer of animals must feed and care for them. — The expenses incurred in keeping a hired animal in suitable condition for use, regard being had to the object in view, under the civil law fell upon the lessor, and that the necessary dis- bursements should be made by the bailor has sometimes been considered to be the common-law rule in the premises,^ on the 1 2 Kent's Com, 478. " 1 Domat, p. 2G5, Sec. 3, Art. 2: "If the tenant is expelled by an eviction, the lessor is liable in damages for the interruption of the lease ; for although this be a kind of casualty, yet the lessor is, notwithstanding, bound to procure a free and undisturbed possession of the thing to the tenant, and to put a stop to all claims made by any other person to the thing that is let, in the same manner as the seller is obliged to do with respect to tlie thing he sells." 8 Story on Bailments, 387: "For the wrongful acts of third persons, tlie hirer has his remedy against them." * Story on Bailments, Sec. 388, citing 2 Kent's Comm. Sec. 58G. This citation does not quite sustain the character ascribed to it by Story. The language in the section of Kent's Com. is : " The lettor, according to the civil law, is bound to keep the svibject in suitable order and repair, and to pay for extraordinary ex- penses necessarily incurred upon it. But tlic extent of the obligations of the lettor under the common law, on the point of repau's and expenses, remains to be defined and settled by judicial decision." Such is the opinion expressed in the latest (12th) edition, in 1873. In Harrington v. Snyder, 3 Barbour, 380, Snyder let a horse to Harrington, and it was known to both parties that tlie horse was lame. A price was fixed for the use of the horse, and Harrington § 95 HIRE OT ANTMALS. 116 reasoning that an agreement on the part of the lettor to bear these expenses arises by implication from the fact that the use and enjoyment of the thing leased cannot be had by the bailee unless it is not only delivered to him, but maintained in the con- dition proper and meet for its use. Such is not, however, the rule to be deduced from the decisions of tlie English Courts^ the general tendency of which is that, in the absence of all stip- ulations or customs to the contrary, the hirer must keep in good order the property which is the subject of the bailment.^ § 95. Extraordinaiy expeiises necessarily incurred in the care of a hired animal must be borne by the lettor ; '^ but the hirer shovild inform the lettor of the facts as qiiickly as the cir- cumstances will admit of. As in a case where ii hired horse is taken sick on a journey, without the fault of the hirer, the nee- said the lameness made no difference to him if the horse perfoiined liis journey. The journey which was to be jJerformed, and the length of time wliich the hirer expected to be absent, were expressly agi-eed upon by the jiarties. The horse performed the journey to the place of destination without apparent injury. On his return he became too lame to proceed, was left at a pu])lic house, and there kept, fed, and doctored for several days. The Court held tliat the expenses incurred at tlie iiublic house in so keeping, feeding, and doctoring the horse, should be borne l)y the lettor, and in tlie de- cision the Court says that it is the duty of the lettor to keep the property in suitable order and repair for the purjioses of the liailment. It is laid down as a rule by Pothier, that where a horse is let to one, on hire, to be keirt by him for a certain jieriod, the hirer is understood to bo bound, ac- cording to the common usage, to pay for his shoeing during that time. IJut it i.s otherwise if a person let his coach and horses to another for a journey, to be driven by tlie servants of the lettor, for in such a case the horses are under the care of the sor^-ants, and the lettor is to jiay for their shoeing. (Pothier Con- trat de Lonange, n. 109, 129, 159. ) This reasoning is not d(;emcd quite sound in all respects, as it would, from the general rule that the hirer should keep the jiroperty in such condition as to ful- fill the requirements of the bailment, result, that even in the instance first put, where no servant went along, tlie horse ought to have been, at the outset, on the journey, properly shod by the hirer, and if by accident in usual wear they were knocked off or worn out on the journey, it is not apparent, under the rule, wliy the lettor should not bear tlie wliole (sxpense of shoeing. 1 Evidently the common-law rule in the premises differs much from that laid downi by Potliier: the lettor, unless there is an express agreement to that effect, is not bound to repair, vide the decisions of the English Courts. Pomfret r. Ricroft, 1 Saunders, ."21-2; Countess of Shrewsbury's Case, 5 Rep. 14 ; Horsefall v. ISIather, Holt's N. V. 7 ; Walton v. Waterhouse, 2 Saund. 422 ; Taylor v. Wliitehead, 2 Doug. 745. -2 Kent's Com. Sec. 58G ; Story on Bailments, Sees. 389, o91 ; Harrington v. Snyder, 3 Barbour, 380. 117 HIKE OF AXIMALS. § 05 cssary expenses incurred in caring for him slionld 1)C paid Ly tlic lettor, and this whether the hors'e recovers, or dies of the mal- ady.^ These expenses, if paid by the hirer, may be recouped against a claim of the lettor for such service as the horse had performed before becoming disabled. The risk of accidents to a hired animal is also to be borne by the lettor, and so long as the hirer exercises ordinary care, pru- dence, and skill, he is not responsible for damages which result from causes beyond his control. Damage happening to prop- erty let, without the default of tlic hirer, and while it is em- ploved in the use for which it Avas hired, must be sustained by the bailor. The bailee, when called upon for the property, at the end of the time for which he has hired it, must deliver it, or account for his default by showing a loss of it by some violence or accident, which hj ordinary care he could not have pre- vented.^ 1 2 Kent's Com. 587 ; Con-^-ell v. Smith, 8 Ind. 530; Conwell being the owner of a jack, /armetZ him to Smith for a standing season, for certain hire specified in the contract; the animal became diseased, and it was shown that this had been caused by his liaving been poisoned, and also that his spermatic cord had been punctured by some sharp instrument, from which it resulted that the animal became impotent; but it was not shown that defendant had any connection with the injuries tufiicted on the jack. It was held that the loss fell upon the bailor, under the general rule. In Iowa, a fai-mer having no work whicli would, in winter, afford employ- ment for his mare, agreed with his neighbor that if he would he might have the use of her through tliat Avinter season, for her feed and shelter ; the propo- sition was accepted, and the animal was turned over and used by him; but dur- ing the Avinter she met with an accident and died; it appeared tliat she had had fair attention and care, and that slie was lost through no negligence or want of ordinary care. Held, that the lettor, not the hirer, must stand the loss, and that the arrangement being for the mutual benefit of both parties, it should be regarded as an ordinary hiring, the care and feed being in lieu of jirice of hire, and should follow tlie general rule. (Chamberlain v. Cobb, 32 Iowa, p. 1()2.) Damages happening to property let to hire, \vithout the default of the liirer, and while it is employed in the use for which it was hired, must be; sustained by the bailor. (Miller v. Salisbury, 13 Johns. 211.) In another case, (Edson v. Weston, 7 Cowen, 278.) defendant hired and re- ceived from plaintiff a horse, the property of Fowle, left by him, Fowle, in pledge -with Edson for securing payment of a debt; defendant agreed to return him to the pledgee, Edson; while defendant so had the property it was taken from him by the constable on a suit against Fowle, the pledgor, and sold. Held, that the lettor, Edson, must not look to his bailee to bear the loss, but, the taking by the constable being a tiling beyond tlie control of the hirer, he was exoner- ated. (Quere : should he not have notified the pledgee ? ) 2 See Ante, Note to Sec. 94. § 9G HIRE OF ANIMALS. IIS § 96. When hired animals are stolen, the loss falls on. the ©"wner, — If ;i tlu'l't of hired uiiimals is committed, and thus the animals are h)st wliilc in the possession of tlie bailee, Avha has hired them, the rule remains the same ; if no negligx'uce or lack of ordinary care has given to the theft ])ecidiar o]){)ortimi- ties to rob, the loss falls still upon the lettor ; the rule for the measure of requisite care to clear the hirer being ordinary care and precaution, such as a man of average prudence would de- vote to the guarding of his own similar property. The promise, it is true, is to safely keep, and, in due time, return the property,, but, under the ride, the understaziding- of such a promise would be deemed to be that the hirer would use due diligence and care to prevent loss or accident ; and there is no breach of trust if,, notwithstanding such care, the animals should be stolen.^ 1 Field V. Brackett, 5G Me. 12.'!. Tlie facts of the case, given in the opinion, are that the i^laintiff hired out to defendants liis wagon, to be used by them f or- a month ; it was admitted by defendants that they made a verbal agreement that at the end of a month they would return to plaintiff tlie wagon in good order, etc. ; but they alleged and proved that it was stolen from them while they were in the exercise of ordinary and jiroper care of it ; that they have never been able to lind or recover the same, thougli to that end they had used all care and diligence. The learned judge (BaiTows) wiio wrote the opinion states and logically sums uji tlie proi^osition and reasoning involved, in a style more earnest and free from wearisome legal phraseology tlian is commonly met with. Placing him.self en rapport vnih the parties and the transaction, he tlius states the 2wobable arrangement. On the part of the hirer, "How long do you want it" (the wagon) ? " A month," is replied. " Will you bring it back in good shape in a month?" "I will." Similar questions and answers miglit and i:)roba- bly would pass, in most cases, between neiglibors negotiating such a transac- tion, without either the lettor or tlie hirer snipposing tliat any s]>ecial obligation (beyond that which the law imiilies on the part of the hirer, to be guilty of no negligence, and to return at the time appointed, in as good order as when re- ceived, ordinary wear and tear, and casualties, for which no blame could at- tach to the hirer, excepted) was assumed or intended to be assumed. I canry my watch to a watchmaker to be repaired. "When can I have it?" " In a week." Here is the same verbal agreement, and upon a like consideration, as that alleged in the case at bar. Yet I do not understand tliat tlie watchmaker assumes any liability for safe keeping, difftjnuit from tliat whieli the law would impose, if he said notliing^ about the return of it to me. "When he tells me I shall have my watch in a week I do not expect him to add, in good set phrase, "provided my safe is not robbed in the meantime." That is underetood be- tween us. To the same point, Foster u. Banlc, Etc. 17 Mass. 478: Petty r. Overall, 42 ^Vla. 145. A watch and chain were deposited by plaintiff with defendant as security to indemnify him against an appeal bond, which ho had signed lor plaintiff; these articles, with projierty belonging to himself, his wife, and daughter, were 119 HIRE OF ANIMALS. § 07 Anything more than this would amount to an insurance of the property, which cannot be presumed to have been intended ; to establish such an insurance an exj^rcss agreement, founded upon adequate consideration, must be shown. § 97. Negligence sufficient to charge the hirer for injury to or loss of hired animals. — What constitutes nc£i;ligence or want of skill, such as woidd charge the hirer with the loss of or injury to animals hired, depends somewhat on the circum- stances of each case. The general rule is that the hirer shall })rovide them with proper food, shelter, and care during the time for which, by the contract, he has them, unless there is some express understand- ing (pialifying the agreement in this respect ; and where no special engagement is shown, the law will, by implication, cre- ate such an one, and hold the hirer to it.^ The hirer must use the animal in a careful, prudent manner, reference being had to its condition and capability, he being re- stolon from defendant's house, and the qtiestion was whether, under the cir- cumstances, the loss of the watch and chain by theft exonerates defendant, the pawnee, from liability therefor ? The rule was declared to be that the lia^ bility of such a bailee, if the pledge be stolen, that he is not absolutely liable, nor absolutely excusable. If the theft is occasioned by his negligence, he is lia- ble ; if without any negligence, he is discharged, such a bailee being bound for ordinary care, and answerable for ordinary neglect. The conclusion cannot be legitimately dra^\^l that the theft of the watch and chain resulted from negligence on the x^art of the bailee. To the same jioint see McEvils V. Steamboat Sangama, 22 Mo. 187. But in Brown v. Waterman, 10 Cush. (Mass. ) it was held to be the duty of the bailee to show that he used due i>re- caution and took reasonable care of the property; this, however, should be taken only with reference to the general rule, that the burden of proof of negligence is on the bailor. 1 Story on Bailments, Sec. 393. In Massachusetts, Carr hired a horse of Edwards to make a specified journey, which he made ; but, when he returned the horse, it was in a condition mani- festing want of proper care, feeding, and attention, and finally died from the effect of the same. It was claimed that when at the end of the outward trip the horse was not properly fed and cared for, and that death resulted from this want of care. The Court declared the law to be that, "to entitle the plaintiff to recover, he must prove that the death of the horse was caused by the over- driving, or want of ordinary care on the part of the defendant," and tliat if plaintiff, after the horse was returned, neglected any proper care or treatment of the horse, and thereby contributed to the illness of the animal, so that the death of the horse was occasioned jiartly by the misconduct of the defendant, and partly by the negligence of the plaintiff, no recovery could be had against defendant. (Edwards v. Carr, 13 Gray, 234.) § 98 HIKE OF ANIMALS. 120 sponsible only for falling iu the exercise of that degree of care which prudent persons generally manifest in keeping, caring for, and using their own property of a similar character. He can only be made liable for such injuries as it is sho\\Ti come from an omission of the prescribed diligence and exercise of judgment, or, in more technical language, for ordinary negli- gence.^ If a man hires a saddle-horse, he is bound to ride It moder- ately, and give it such care, stabling, and feed as a man of com- mon discretion would to his own. Doing this, he is not liable to any damage, shoidd the horse be lamed, get injured, or be- come sick ; and it would appear that he is not bound to show, in the first instance, that he is free from fault. The law pre- sumes him to be so, and the burden of proof of culpable negli- gence, want of skill, or absolute ill treatment, devolves upon the lettor of the animal.^ § 98. Hirer of animals liable for his servant's neglect. — If from want of ordinary care the hired animal be injured or lost, whether such defaidt be on the part of the hirer or of his servants intrusted therewith, or the children of the hirer 1 Jones on Bailments, 88 ; Maynard v. Buck, 100 Mass. 40 ; Hayes v.Ho^vard, G Geo. 213 ; Bro-wne v. Johnson, 29 Texas, 43 ; Foote v. Sterns, 2 Barb. 326 ; Har- rington V. Snyder, 3 Barb. 380, in which it was held (in an action on the case against the liirer of a horse for so negligently taking care of him that he be- came of no value) that the burden of proof of negligence was on the bailor ; that it was not enough for him to show that he was injured while in the posses- sion of and use by the hirer, but it must be shown that the injury was caused by the fault of the bailee. - But where the loss occurs, and the hirer neglects or refuses to giA'e any ac^ count of the cause, a presumption of negligence arises, which seems to cast the burden of proof on the hirer. (Logan v. Mathews, (J Barr, 418 ; Bush v. ]\Iiller, 13 Barb. 482 ; Cummins r. Wood, 44 111. 41(i. ) But a careful analysis of these cases does not not disturb the rule cited iu the text. The burden of jiroof may be on the iilaintiff, but given a certain condition, viz., the hiring of the animal, its death or loss, and an utter refusal of the hirer to give the exiilanation of the facts and circumstances which he alone can be cognizant of, may well give rise to a presumption of negligence which he must rebut. This very establishment of the presumption is an assumption, in a certain way, of the burden of jiroof. "The degree of negligence necessary to authorize a recovery against the hirer of a horse, which died during the bailment, is not gross negligence, but what is called ordinary negligence ; and ordinary negligence is the omission of that dil- igence in the use and care of the horse which the generality of mankind use as to their own horses ; and the omission of such diligence is called ordinary neg- ligence." (Jloorc V. Cass, 10 Kaus. 288.) 121 HIRE OF ANIMALS. § 90 allowed to use or be about the same, the hirer is responsi])le. lie is bound to use the animal with care and moderation, not to appl}" it to any other than the designated use,^ or detain it for a longer period than that for which it was hired,^ and at the end of the term return it to the bailor, or account for its loss by- some violence, theft, or accident ; ^ but, when the loss is shown, the proof of negligence or want of due care is thrown upon the bailor, and the bailee is not bound to prove affirmatively that he was not to blame. The value and character of the animal must be regarded by the hirer in ascertaining what is proper care. High-priced or delicate animals should, of course, not be classified with such as are commonly treated without special attention. Care and negligence are relative terms ; they are without precise definition, not susceptible of exact measurement, and what constitutes them, or either of them, can only be determ- ined by taking into consideration the circumstances of each case. " The care must rise in proportion to the demand for it," is the language used by an eminent writer,* and the rule cannot be more correctly stated. § 99. The hirer has a special property in the animal leased to him, for the purposes expressed or implied b}' the con- tract.^ He also acquires the exclusive right to the possession of it, 1 Duncan v. R. R. Co. 2 Rich. 613 ; Mayor v. Howard, 6 Geo. 213 ; Harvey v. Epes, 12 Gratt. 153. 2 "Wheelock v. AYheelwriglit, 5 Mass. 104. Tlie Cliief Justice (Parsons) says : "The defendant, by riding the horse beyond the i^lace for which he had liberty, is answerable to the plaintiff in trover ; for thus riding the horse is an unlawful conversion." Swift V. ]Mosely, 10 Vermont, 208. Swift hired of plaintiff a farm with the cattle and .sheep on it ; during the terra he sold the sheep and cattle. Tlie action was trover for them against the purchaser. Held, that if the hirer apply the subject of bailment to a purjiose different from that iirovided by the lease, his interest is determined, and the lettor is entitled to the property. 8 Haines v. Little, 28 Ala. 236. If a bailee for hire sells the goods without au- thority, the bailment is at an end. The sale docs not carry to the vendee even the right of possession for the unexpired part of the term, but tlu; bailor may maintain trover even against the bona lido purchaser. (Loeschman c JIachin, 2 Starkie, 311; Cooper v. M'illomatt, 1 C. B. 672.) * 2 Kent's Com. 587 ; Harris v. Packwood, 3 Taunt. 201 ; ^Marsh v. Home, 5 B. & C. 322. 5 Jones on Bailments, 85, 86; Bac. Abr. Bailment "C." In Lee c. Atkinson, Yelv. 172, it was held that, where one hired a horse to go to a certain place, and § 100 HIRE OF ANIMALS. 122 may maintain an action for injury done to it, for any tortious dispo.sition of it, or for any act of a third party Avliich unlawfully interferes with this enjoyment of the use of the animal to the extent of the bailment.^ The owner lias no right to interfere with this possession of the hirer, or disturb him in the lawful enjoyment of the property during the term of the bailment;^ nor can the animals be levied upon for the debts of the owner, in such manner as to interfere with the possession of the hirer ; ^ and even if, during the time for which the property has been let, it is redelivered to the owner, unless the contract be termi- nated, he is bound to return it to the hirer.^ § 100. If the hirer abuse the animal, or otherwise violate the terms of the trust, it is a question not free from difficulty how far, if at all, his title and right of possession terminates. The lettor does not absolutely part with the title, even tempo- rarily ; he may, as well as the hirer, maintain a suit against a stranger for injuries to or conversion of the animals ; ^ he still has the larger and more beneficial estate in the ])roperty, and it ai)pcars an anomaly that he cannot be allowed to protect his property from such treatment as is manifestly beyond and for- eign to the purposes had in view in making the contract ; it the hirer found him upon a road to another place, entirely different from the one lie should have taken, and manifestly on a journey differing materially from the one for which the horse had been hired, the owner should not be justilied in taking the horse from the bailee; the misbehavior of tlie bailee, in riding to another place tlian that for which lie had hired the animal, miglit be iiunislied by an action on the case, but he had a certain property in tlie horse for the term of the bailment. 1 Ibid; 2 Kent's Com. 58G. - Ilickock V. Buck, 22 Ver. 149. This was trover for a mare and colt. Tlie defendant leased a farm to plaintiff, and agreed to furnisli him a pair of oxen and a horse, to carry it on, and llie mare in question was furnislied as and for tlie stipulated horse. Afterward, the plaintiff, without defendant's consent, took away the mare and sold her, without furnishing any other horse to work in her place. Held, that when, under the contract, defendant placed the mare on the farm, under the charge and for the use of the jilaintiff, he, the plaintiff, liaving accepted her for the purposes in the contract siiecilied, became bailee of th(! mare, coupled with an interest, and a riglit to detain her during the term of tin; demise; that he had the exclusive use and control of her during the term, and he could maintain trover against the defendant. '■' Hartford r. Jackson, 11 New Hampshire, 145. ' Roberts r. Wyatt, 2 Taunt. Itep. 2(18; ]5alford v. Flowers, 11 Humph. 242. '' I3ac. Abr. Trespass, " C " ; Ibid, Trover " C " ; 2 Bl. Com. 390; Gordon v. Har- per, 7 Term Rep. 9; La Coste v. Pipkin, 13 Sm. & Mar. 589. 123 HIRE OF ANIMALS. § 100 seems, however, that the owner is bound to abstain from inter- fering with the enjoyment of the property, by tlie bailee, dur- ing tlie term, and he cannot justify a seizure of the thing by force from the personal possession of the hirer, whatever may be las right to retake it, if he can peaceably, wherever he can find it, under circumstances of danger to his property. ^ An improper use or abuse of the property, or employing it other than as agreed upon, would appear to amount to a virtual determination of the bailment, so that there would not seem to be any reason why the owner shoidd not treat the bailee as a stranger, and retake the animal, if he can do so without violence ; he certainly may maintain trover against the hirer therefor ; ^ and, in one instance, Avhere a mare, which had been hired, was badly treated, over-driven, and left ill, at a distance from the home of the lettor, the owner was not only authorized to go for and retake her, but Avas allowed all of his expenses in going to her, attending upon the animal, and bringing her home. ^ Where the bailee converts the property to his own use, the 1 Lee V. Atkinson, Yelverton, 172; Story on Bailments, Sec. 39C. 2 Iljicl ; AVilkinson v. King, 3 Camp. 335; Loescliman v. Macliin, 2 Stark. 311 ; McLaughlin v. Lomas, 3 Strobli. 85; Paley on Agency, 78, 79, 80; Rotch v. Hawes, 12 Pick. 135. Trover for conversion of a horse. Defendant hired a horse to go from New Bedford to Fall River and back. He took the horse in the morning for the pnri^ose of making this journey, and returned liim to the' owner, a livery-stable keeper, at night. Immediately after the return of the horse he was taken sick, and finally died of this illness. It ajipeared that de- fendant had ridden him much further than the distance agreed upon. And it was held that if a person hire a horse to go a certain distance, and he goes fur- ther, he is liable in trover for an unlawful conversion. (Homer v. Thwing, 3 Pick. 492.) 3 Graves v. Moses, 13 Minn. 335. In this case defendants hired a team — a stallion, mare, and carriage — to drive to a certain place and back. By bad treat- ment, over-driving, etc., the mare fell sick on the road, and was left at a road- side inn. One of the owners went to see after, care for her, and bring her home. The Court held that ho who takes a thing to liire engages to use it well, care for it properly, and return it to the owner. If bad usage procure the loss of tlie property, the bailor may recover from the hirer the value of the property lost through Iiis misconduct. And it is the privilege, probably the duty, of the lettor to use all reasonable exertions in a case such as this ; to use all reasonable care, diligence, and skill, to save the animal's life, and to cure it. That for tlie ti'ouble and expense he is put to in so doing, he may have judgment against him whose misconduct has caused the occasion therefor; and that the ex- penses and loss of time incurred, in going to and from where the sick animal was, should be included as a natural and necessarily incurred part of such loss and exiiense. S 101 niRE OF ANIMALS. 124 bailment is ended. ^ Thus, if a bailee for hire, for a specified Icnuth of time, sell the pi-operty before the expiration of the term, tlie bailment is thereby ended, and the owner may main- tain trover, should the vendee refuse to deliver it to him on de- mand. Nor docs it alter the case that the bailee, by his con- tract, had a right to purchase the property within the term at an agreed price. § 101. A borrower differs from the hirer of animals, in that he is held to a much more strict rule of care and respon- sibility. Where a loan is gratuitous, when the lender derives no bene- fit from the transaction and looks for no reward, the bailee is bound to extraordinary care, and is responsible for injuries resulting from slight negligence on his part, or that of his employees, children, or guests.^ 1 Sargent v. Gill, 8 N. H. 325. See Green v. Harris, 3 Iredell, 210. 2 Jones on Bailments, 64 et seq. ; Vangli v. Manlove, 3 Bing. N. C. 468, 475 ; Phillips V. Condon, 14 111. 84 ; Scranton v. Baxter, 4 Sandf. 8. In Bennett v. O'Brien, 37 111. 250, the jnsticc (Lawrence) says : "O'Brien let Bennett have the use of his horse without compensation. This gratuitous bail- ment imposed on the borrower the duty of extraordinary care." The animal died while in the possession of the borrower : it was held that the burden of proof was upon him to show that he had taken such care. (Wood v. McClure, 7 Ind. 155 ; Eastman v. Sandborn, 3 Allen, 594 ; Carpenter v. Branch, 13 Yern. KJl.) Green v. Holliugsworth, 5 Dana, 173 ; Howard r. Babcock, 21 111. 259. This •was an action for debt. It appeared at the trial that plaintiff sold his farm to defendant, and loaned to him a pair of work-mares which were on the place. One of the mares died. Defendant proved that he liad taken all reasonable and proper care of her. It was lield that unless the defendant could show that the death of the animal was without his fault, and that he had taken extraordinary care of tlie mare, he would be liable for her value ; that a sliglit degree of neg- lect in the care of an animal loaned would render the borrower liable for its loss or death. A borrower of animals is, of course, bound to feed them during the time of the loan, unless an express arrangement to that effect relieves him from this duty, (Hanford v. Palmer, 2 B. - poHfcd purchaser, is not a contract, hecause of the want of mutual as,sent of the parties. (Faulkner r. IleVjard, 2^5 Vcm. 452.) 133 SALE OF ANIMALS. § 109 neither party is bound ; but where a custom prevails to tlie cil'ect, or by the circumstances of the case it fairly appears that rea- sonable time to deliberate upon the offer was allowed, an assent given within such time Avill complete the contract, unless, in the meantime, the proposal is withdrawn,^ The assent, also, may be either expressed, or it may be implied from the circumstances of the case ; and although mere ordinary silence would not generally indicate an assent, and complete the contract, yet if, by the terms of the offer, it is inciunbent on him to whom it is made to express his dissent, and he fails to do so, or when his conduct in the premises is such as to indicate une- quivocally that he accepts the proposition, his assent will be implied.^ § 109. Taking animals on trial. — Where the owner of an animal allows the person wdio proposes to buy it time to try it before determining upon the offer of sale, he nuist return the property before the time expires, or his assent to the proposal may be presumed.^ Tlijere is nothing in such offer and accept- ance of the use of the animal which can be treated by either party as a mere bailment for hire ; the owner of the animal would not be justified in claiming the value of the use of the animal Avhile so in the custody of the other party, and the pro- posed buyer cannot keep the animal over the presci'ibed period of time, and shelter himself from the presumed acceptance of the bargain by offering to pay for the use of the animal during the time which he has retained it ; and when an offer is made, and the property allowed to be taken on trial, without any definite period of time being fixed, the law will limit it to a 1 Martin v. Black's Adms. 21 Ala. 721; Story on Sales, Sec. 126; Johnston & Lyon V. Feaslcr, 7 AVatts, (Ponn.) 48; Peru v. Tenner, 1 Fairf. 183. A Largain should be regarded as closed when nothing remains to be done to give either party a right to enforce it; where an olTer is made in WTriting, by letter, the presumption arises that the offer is a continuing one; until the h-ttcr is received by him to whom it is sent; and so tlic offer is presumed to remain standing until it is expressly revoked; whether the iiroposition was at a certain time open for acceptance, is a question of fact for the jury. (INIactier's Adms. v. Frith, G Wend. 103; Faulkner r. Hebard, 2f) Vern. 452.) 2 Corning v. Colt, 5 Wend. 253; Train v. Gold, 5 Pick. 379. « Story on Sales, Sec. 128. § 110 SALE OF ANIMALS. I3-I: reasonable length ; and if the animal is not restored witliin a reasonable time, the assent to the piu'chase will be presumed.^ § IIQ. Fraud vitiates all contracts. — There can be no assent which is not given upon a fair imderstanding by the par- ties, free from imposition or mistake.^ If diu^ess, mistake, or fraud enter into the contract, it is not binding. A common definition of fraud is : " Every kind of artifice employed by one person to deceive another." Fraud is a fact to be passed upon by the Jury, taldng into consideration the circumstances of the transaction. He "who commits the fraud is, however, at the option of the other party, held to liis contract,^ and he wlio has been de- frauded may either acquiesce in or avoid the agreement, pro- vided he does so within a reasonable time after he discovers the ilbid; 1 Joues, (X. C.) 131; Moore v. Piercy. A contract of sale of horses, stipulating that, upon the purchaser's failure to pay over to the vendor the lirst money, on tlieir resale they should be subject to the vendor's order, construed to pass the title, such apjiearing to be tlie intent. (Chamberlain v. Dickey, 31 Wis. G8.) 2 It has always been admitted to be an impossibility to prescribe a definite rule as to what is or is not a fraud. The only definition of "fraud " is " fraud." (Story on Sales, Sec. 158, citing Hadleyet als. v. Clinton Co. Etc. 13 Ohio, (N. S.) 502.) A co^vhad been sold for 81,050, ujion representations and advertisements of a sale of celebrated foreign cattle, equal to any previous importations from England. The sale took i^lace Aug, !)th, 1854. There was a printed advertise- ment of the stock advertised for sale ; there was a sjiecific advertisement and description of the animals offered. Of the one sold to plaintiff, the description was : "Ko. 10. Princess, roan, calved in 1852, bred by II. W. Stapleton, got by Ix)rd Newton, dam Kate, by Isaac, 9239," etc., sho^ving a length of x>etligree, and referring to the number in the herd-book. As a matter of fact, the cow proved to be four years old, and hence this advertisement — in a material point, the age of the animal — was false ; but the president of the company making the sale openly jiroclaimed that, although tlie comjiany had full confiderrce in the skill and honesty of their agent, who had purchased tlie stock, and on whose rer)resentations the advertised descriptions were based, yet that the comjiany did not warranty the rejiresentations, but offered to the purchasers all means of inquiry at command of the company. The Court gave the rule of fraud as cited in the text, pp. 50(5-7, but in tlie special case held that there was no fi*aud ; that no wan-anty was offered or expected as to the age of the cow ; no untniths were uttered or accejited by the vendors, the importing company ; they grave, or professed to give, what in- formation they had, and tendered to purchasers the same means which they, the vendors, had for informing themselves. (Carter i: Abbott, 33 Iowa, 180.) 8 Story on Sales, Sec. 485 ; Ibid, Sec. 159. Thus, where the defrauded party sees fit to settle the matter, he being aware of tlie fraud, he has no relief after hav- ing voluntarily released him who had committed tlie fraud, and accepted tlie contract after knowing of the fraud. (Parsons i-. Hughes, 9 Paige's Ch. 11. 571.) 135 SALE OF ANIMALS. § 111 frautl.^ But if both parties are guilty of fraud the Lnv Avill leave them as it ilnds them, and will enforce no claim by one against the other.^ § 111. Any misrepresentation of a material fact annuls a contract made on the basis of it, whether the party making the false representation knew it to be so or not;'^ so that it is not absolutely essential that the fraudulent intent be susceptible of proof, or to show that the person wlu) has committed the fraud has been benefited by it, or to prove that there has been collu- sion with the party who is so benefited. Where any trick has been played or artifice used by which a party has been deceived, and by means of the deception induced to make the contract, it cannot be enforced against hmi. An exception to the general rule appears to be established in 1 Bruco V. Davenport, 3 Keyes, 472. "It is tlie duty of a party who proposes to disaffirm a contract entered into by himself as fraudulent, to do so at once upon the discovery of the fraud. It will not do to await a possible beneficial issue to the contract, and to repudiate it only when the danger to himself becomes imminent." 2 No person can avail himself of his own wi'ongful acts, and hence, when both are at fault, neither can invoke the aid of the law ; it leaves them as it found them, equal, and without remedy against themselves or their own mis- deeds. (2 Parsons on Contracts, 5th Ed. 1866, p. 782. ) Althougli, as a rule, fraud vitiates all contracts, it would seem that a fraud perpetrated on Sunday does not have that effect where laws for prevention of work on the Lord's day are in force. In Plaisted v. Palmer, N. Y. Court of Appeals, July, 1875, "the defendant sold a horse to the ijlaintiff on Sunday ; the plaintiff gave his bank-check for the price of the Itorse on the same day ; the defendant at the same time depos- ited a bill of sale of the horse with a third person, to be delivered to the plaintiff when the check was i^aid ; the check was jiaid, and the horse and bill of sale were delivered, all on a secular day, afterward. Held, that an action of as- sumpsit to recover back the price 2")aid for the horse, on account of a deceit prac- ticed in the sale, would not lie, because based upon a transaction tainted with illegality." 3 Story on Sales, Sec. 105. Parsons on Contracts, Vol. 2, 5th Ed. 18Gfi, stops a little short of the rule as stated in the text, and says that "the doctrine is not fully settled ; that it would often be very harsh and apparently inijust to inflict all the consequences of fraud on one who had made a material misstatement iu ignorance only because of his q-wti error" ; but it would seem still more luijust, says the same wi-iter, to iiermit all the consequences of this false statement to fall and rest on him whose only fault was in believing that one told tlie truth who was in fact stating that which was false. Possibly there sliould be a dis- tinction in law, as there is in morals, between him who is mistak