Megow v. Chi., M. & St. P. Ry. Co.

• Decision Date: 28 November 1893
• Citation: 86 Wis. 466,56 N.W. 1099
• Court: Wisconsin Supreme Court
• Parties: MEGOW v. CHICAGO, M. & ST. P. RY. CO.

86 Wis. 466

56 N.W. 1099

MEGOW

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Nov. 28, 1893.

Appeal from circuit court, Juneau county; Robert G. Siebecker, Judge.

Action by E. P. Megow against the Chicago, Milwaukee & St. Paul Railway Company for injury from a fire. From a judgment of nonsuit, plaintiff appeals. Affirmed.J. J. Hughes, (G. Stevens, of counsel,) for appellant.

C. H. Van Alstine, (John T. Fish, of counsel,) for respondent.

PINNEY, J.

This action was brought by the plaintiff to recover damages against the defendant for burning over his cranberry marsh, situate on the N. W. 1/4 of the S. E. 1/4 of section 3, township 18, range 2, in Juneau county, on the 9th day of August, 1886; and it is claimed that the fire which did the injury was negligently caused by the defendant, and was communicated on the 28th day of July, 12 days previous, to the grass, rubbish, and decayed vegetable matter on and along the right of way of the defendant between sections 21 and 22 in town 20, range 2, at a point over 9 miles nearly directly north of the plaintiff's premises, and from which point the fire spread over and upon the marsh lands between Beaver brook and Little Yellow, a branch of Yellow river, passing in a circuitous route to the southeast, and finally to the southwest, where it is claimed the fire reached the plaintiff's premises, and caused the damages in question. The distance which it is thus claimed the fire ran in 12 days was over 12 miles, and the country over which it passed on both sides of this route, and to the north and south as well, consists of a large marsh, interspersed with patches of hard land, covered with oak bushes and scrubs, and a few scattering jack pines in places. The marsh was boggy, and at times quite wet, and had not been burned over regularly, so that in many places there had accumulated layers of decayed grass of former years, beaten down among the peat bogs; and the marsh was at the time covered with the then green growth of the season. The season had been an unusually dry one, and the dead grass and decayed vegetation and bogs were in a condition favorable to the spread of fire. The wind for the most part was from the northwest and north, and finally from the northeast. Owing to the distance the fire is claimed to have spread, and the 12 days it was burning, and such intervening patches or bodies of hard ground covered with bushes, etc., great difficulty was experienced in attempting to trace the fire from the point of its origin to the plaintiff's premises, and in showing that this fire thus negligently communicated to the marsh, as it is claimed, burned over the plaintiff's cranberry marsh; and this difficulty was very materially increased by the fact that several back fires had been set at intervals in the mean time to intercept and prevent the passage of the original or main fire to the south, and the further fact that no witness was produced who was able to testify as a fact within his knowledge that the original fire caused the injury complained of, and that those who saw the fire burn over the plaintiff's marsh were unable to say as a fact that it was not the result of the back fires, instead of the original fire. The witnesses upon whose testimony the plaintiff relied to trace the fire only saw it progressing in a southeast direction occasionally, and for no considerable portion of the time it was running the entire distance, and almost invariably at a...