42 Me. 579 (Me. 1856), Pratt v. Atlantic & St. L. R. Co.

Citation:42 Me. 579
Opinion Judge:TENNEY, J.
Party Name:BENAJAH PRATT, JR., v. ATLANTIC AND ST. LAWRENCE RAILROAD COMPANY.
Attorney:Shepley & Dana, for plaintiff. P. Barnes, for defendants.
Court:Supreme Judicial Court of Maine

Page 579

42 Me. 579 (Me. 1856)

BENAJAH PRATT, JR.,

v.

ATLANTIC AND ST. LAWRENCE RAILROAD COMPANY.

Supreme Judicial Court of Maine.

1856

The liability of a railroad company under the statute of 1842, c. 9, § 5, for damages occasioned by fire from its locomotive engines, is not confined either to real or personal estate; it exists in reference to both.

A railroad company is not liable for damages, by fire from its engines, to cedar posts deposited within a few rods of the track, and intended for use in some other place within a short time.

It is liable, however, for damages to growing timber along its route.

Although growing timber may not have been extensively insured, if at all, it is not unreasonable to suppose that it was intended to be included within the meaning of the statute, and that railroad companies have an insurable interest in such timber along its route. The statute is sufficiently comprehensive to embrace growing trees, and no reason is perceived for excluding them from its operation.

The language of the statute, " along the route," applies to buildings near and adjacent to the railroad so as to be exposed to the danger of fire from the engines.

A building separated by a street from that upon which the fire from the engine fell, and growing timber three hundred feet from the track, are " along the route," within the purview of the statute.

The growing trees of A. stood about three hundred feet from the line of the railroad. Fire from the locomotive engine communicated to materials growing and naturally lying between the premises of A. and the railroad, and

Page 580

extended to and damaged A.'s growing timber. A. brought his action against the railroad company for the damages:-- Held, that the company was liable therefor.

Provisions of a statute absolutely inconsistent with those of another statute subsequently enacted, are ordinarily regarded as repealed; but statutes cannot be repealed by implication, if the implication does not necessarily follow from the language used.

The simple incorporation into a private statute of a portion of the provisions of a general public statute cannot be treated as a repeal of its other provisions which are omitted therefrom.

The incorporation of such provisions into the charter of a corporation as a part thereof, cannot exonerate the corporation from the duties, liabilities and obligations imposed upon similar corporations by the general statute.

The statute of 1842, c. 9, is remedial in its nature, and applies to corporations which obtained their charters prior to its enactment.

The Atlantic & St. Lawrence Railroad Company is not by its charter (Special Laws of 1845, c. 195,) exempted from the operation of the statute of 1842, c. 9.

Section eighteen of the charter of this company looks only to the future, and has no effect to annul or modify any thing contained in the Act of 1842, c. 9.

AGREED STATEMENT OF FACTS.

This was an action on the case, to recover for damages done to growing timber on plaintiff's land, on the 17th May, 1853, by fire communicated from defendants' locomotive engine.

The writ was dated June 30, 1854.

The title of the plaintiff to the premises was admitted; and that the premises were situated near the line of the railroad of defendants, almost three hundred feet distant therefrom.

It was also admitted, that the plaintiff's loss was sustained by reason of fire communicated by the locomotive engine of defendants', to materials growing and naturally lying on the land between plaintiff's premises and the railroad track; and thence immediately spreading to plaintiff's premises.

The depositions of Ira Crocker, James C. Churchill, Caleb S. Carter and John W. Munger, taken by defendants, together with any others legally taken by either party relating to the subject matter, were made a part of the case, subject to legal objections, and were to be considered by the Court, as they would be by a jury.

Page 581

If, upon the foregoing statement of facts and the testimony in the case, the Court should be of opinion that the plaintiff was entitled to recover of defendants for the damages sustained by him, the defendants were to be defaulted,--damages to be assessed by any member of the Court. If otherwise, plaintiff to become nonsuit.

Shepley & Dana, for plaintiff.

1. The question in this case, is, whether or not a railroad corporation is answerable for damages occasioned by fire communicated by their locomotive engines to wood and timber growing along the route of their road.

It is evident, that unless they are so made answerable, and thus held to the exercise of care, owners of such property along the route are subject to hazard without a compensating benefit; they find their property suddenly put into the hands of others, without their consent. To say they are compensated by increased privileges, is not true, and does not meet the case; for no privilege will be accepted by any man which is accompanied with such constant risk, while his condition is still more intolerable, if this so called privilege is forced upon him against his wishes. Nor can it be said that the owner of such property is recompensed by the damage awarded on the laying out of the road; for, in cases like the present, where the property is not crossed by the track, but still lies so near it as to be constantly subject to the risk, no damage is awarded.

2. The statute of 1842, c. 9, § 5, provides that " when any injury is done to a building or other property, of any person or corporation, by fire, communicated by a locomotive engine of any railroad corporation, the said corporation shall be held responsible in damages to the person or corporation so injured." And that this liability may not be too onerous to railroads, the same section provides that they shall have an insurable interest in the property for which they may be so held responsible, in damages, along the route, and may procure insurance thereon in their own behalf.

In Hart & al. v. Western Railroad Co., 13 Met. 99, this section (also the law of Massachusetts,) received a judicial

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construction, under a state of facts essentially like the one at bar, and the reasoning of the Court applies with equal force here, and that judgment is decisive of this question.

The case of Chapman v. At. & St. Lawrence Railroad Co., (Law Reporter, January, 1855, p. 502,) simply decided that articles, deposited by the railroad, and removable at will, are not covered by the provision, and it in no wise conflicts with the case in 13 Met. 99, nor does it weaken the force of the reasoning in that case.

3. It is difficult to conceive, that while railroads are liable for injury occasioned to buildings, growing timber, immovable, impossible to be secured, and, in some seasons of the year, highly inflammable, should not be covered by the term " other property." What does the term include then? Does it mean live stock, or grain, or tools,...

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