Needham v. King

• Citation: 54 N.W. 891,95 Mich. 303
• Court: Supreme Court of Michigan
• Decision Date: 14 April 1893
• Parties: NEEDHAM v. KING.

54 N.W. 891

95 Mich. 303

NEEDHAM v. KING.

Supreme Court of Michigan

April 14, 1893

Error to circuit court, Jackson county; Erastus Peck, Judge.

Action by George H. Needham against George B. King, special administrator of Benjamin Peckham, deceased, to recover for injuries to plaintiff's land and cattle through defendant's alleged negligence. There was judgment for plaintiff, and defendant brings error. Affirmed.

Thomas A. Wilson, for appellant.

Parkinson & Day and Thomas E. Barkworth, for appellee.

McGRATH J.

Plaintiff sued defendant's intestate, one Peckham, for damages by reason of a fire which Peckham had ignited on his own premises, and which had communicated with plaintiff's premises. The following sketch will illustrate the situation of the land of the respective parties:

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Plaintiff's north 80, and about two thirds of Peckham's north 80, had been marshy land. The ditching left a peaty topsoil. That portion of plaintiff's 80 immediately north of the county ditch, had been partially subdued, and produced a kind of blue grass. Peckham's land south of the county ditch, and extending south of the dry ditch to the higher land, had not been subdued, nor does it appear that the grass had been cut upon the marshy portion. Immediately south of the dry ditch there were a few acres of higher ground, which had been chopped three years before, and upon which there was an accumulation of old logs, brush, and dry grass and thistles. Immediately south of this fallow, wheat had been cut that season, and Peckham was preparing to put in another crop of wheat upon the same parcel. On June 30th, Peckham set fire to the wheat stubble at about the point A. The fire spread from the stubble into the fallow, and still further northward. The weather continued very dry, and on the 19th of October following a high wind carried the fire northward upon and over plaintiff's entire 80. It appears that Peckham encouraged the fire from time to time through this entire period, relighting it wherever it had failed to clean up the ground to his satisfaction. His design, as he expressed it was to burn off the peaty surface, and subdue the land in that way. His neighbors had called his attention to the danger of the fire spreading and running over the marshy land, but he persisted. Plaintiff recovered, and defendant appeals.

The burning of a fallow, and of brush, logs, and rubbish, on the surface of one's own land, is of frequent necessity in husbandry, and is a lawful act, unless the fire is set at an improper time, or is carelessly managed. As is said in 2 Shear. & R. Neg. � 669, "the owner of land has a right to burn the fallow and wood thereon for the purpose of bringing the land into cultivation, and is not liable for injuries caused to his neighbors thereby, without proof of some other act or default, or some other circumstance making the act itself negligent. He must however, use ordinary care to prevent spreading the fire upon the land of others." The purpose may be lawful, the time opportune, and the manner prudent; yet if, in consequence of negligence in the care of the fire, it spreads, and injures the property of another, the liability attaches. The gist of the action for the injury is negligence, and it is sufficient if a want of ordinary care is established. Hewey v Nourse, 54 Me. 256; Bacheler v. Heagan, 18 Me. 32; Higgins v. Dewey, 107 Mass. 494; Barnard v. Poor, 21 Pick. 378; Tourtellot v. Rosebrook, 11 Metc. (Mass.) 460; Dewey v. Leonard, 14 Minn. 153, (Gil. 120;) Catron v. Nichols, 81 Mo. 81; Garrett v. Freeman, 5 Jones, (N. C.) 78; Hanlon v. Ingram, 3 Iowa, 81; Jacobs v. Andrews, 4 Iowa, 506; Furlong v. Carroll, 7 Ont. App. 145; Tuberville v. Stamp, 12 Mod. 152; Gillson v. Railway Co., 35 U. C. Q. B. 128. These cases impose the duty, not only of care in the setting of fires, and, in localities where contagion is probable, of proper precautions, but of diligence in management, in guarding against spreading, and in the protection of neighboring property. They generally relate to fires not unlawfully or carelessly kindled. Fire is a dangerous element, and in making use of it a degree of care is required corresponding to the danger. Due care regarding its use is defined by Mr. Cooley as "a degree of care corresponding to the danger, and requires circumspection, not only as to time and place of starting it, but in protecting against its spread afterwards." Cooley, Torts, p. 700.

The defendant, however, insists that the act of setting fire to the stubble was a lawful act, and that he could not be made liable by an unlooked-for contingency, such as drought or high winds. An examination of the authorities will not be unprofitable: In Stuart v. Hawley, 22 Barb. 619, there had been considerable rain in the latter part of June; but from that time to July 17th, when defendant set fire to some log heaps in his fallow, it had continued dry. The place had been burned over the May previous, and there was no brush near. It was low swamp land. The log heaps were not very dry when first fired, and did not burn. It rained a little on the morning of the 17th, but on the 20th the wind blew violently, and the fire communicated to the pasture lot lying between plaintiff's and defendant's lands. On the 26th day of July the wind blew a gale, and the fire was blown across the pasture lot upon plaintiff's premises. The only evidence of any carelessness was that the fire was set in a dry time in July. The court held that this single fact did not entitle plaintiff to recover, and say: "The fire was set on low swamp ground that had once been burned over. There was no brush near. Stumps were wet, and did not burn well; in fact, were not all consumed. It is a well-known fact that fire will not so readily run on ground which has been burned over, as at first. It was set on a day which looked likely to rain. It had rained in the morning, though not to a great extent." In Calkins v. Barger, 44 Barb. 424, "defendant in the early part of May set fire to some log heaps on his premises, which were old and damp, and were from five to ten rods from defendant's house, and about one third of a mile from plaintiff's barn. The land where the fire was set was damp, and near a swamp, and had been burned over the year previous. The defendant's hired man left him the same day of the fire, which was two days after it was kindled; and the defendant himself went away from home, the same morning, a distance of about two miles, and returned again about 2 o'clock in the afternoon. There was no wind, and it was a little hazy, when the defendant left. About 10 o'clock in the forenoon the wind arose, and it blew a gale. the fire, which had been burning up to this time, appears to have followed the decayed material of an old fence a portion of the way, and then must have blown over some distance to the defendant's barn, which took fire, and, with its contents, was consumed." In both of these cases, the setting of the fire was a lawful act. The fires were not maintained as running fires, but were kindled for a specific purpose. In neither case were the surroundings suggestive of more than ordinary danger. The fire in both cases was forced beyond the vicinity of the log heaps, and over a surface that in the ordinary course would not lead it. In Averitt v. Murrell, 4 Jones, (N. C.) 322, "the defendant had fenced in a portion of his own woodland, and was engaged in clearing it about the time of the alleged wrong. To this end he had had the timber cut down, and piled up for burning. The nearest of these log heaps was 25 or 30 yards from the woodland of the defendant, and several hundred yards from that of the plaintiff. On the day charged in the warrant the defendant ordered his slaves to set fire to these log heaps, and to burn them up. They raked the trash away from the log piles carefully, and in the morning, while the weather was calm, did set fire to the logs. Afterwards the wind blew with great violence, and carried sparks to the neighboring woodland, whereby the woods took fire, and the flames reached the plaintiff's woodland, and burnt his cultivated turpentine trees, and did him considerable damage." Due precaution had been taken. The fire was ignited in the morning. It was being carefully guarded, and the wind arose within a few hours. In the subsequent case of Garrett v. Freeman, 5 Jones, (N. C.) 78, where a fire was set in a log heap in very dry weather, within five rods of a fence, a dead pine tree and rubbish lay between the log heap and fence, by which the fire was communicated to timber and a house upon adjoining land. When the fire was set, it was calm, but the wind afterwards arose. The same court held that it was negligence to fire the pile in that situation, when there was reason to expect at least an ordinary wind. In Miller v. Martin, 16 Mo. 508, Martin owned a farm about one half mile north of plaintiff's, and between them was an open prairie. He had started to plow a field, but, in consequence of the stubble and rubbish upon the ground, he was obliged to...