Simpson v. . Lumber Co.

CLARK and DOUGLAS, JJ., dissenting. On 6 August, 1900, plaintiff sold and conveyed by deed to the defendant, in consideration of $2,000 paid him, all the timber upon his tract of land (583 acres) measuring ten inches and above in diameter at the stump, and granted to defendant the right "to construct, maintain and use such roads, tramways and railroads. . . on and upon said land as it may deem necessary for cutting and removing said timber . . . and shall have the right and privilege of locating said road . . . and the use of such trees, undergrowth and dirt as may be necessary to construct and maintain the same; . . . that said party of the second part shall have the term of one year from date of deed within which to cut and remove said timber."

Pursuant to the provisions of said deed defendant company entered upon said land, constructed its railroad, cut and removed timber, and on 14 September, when the train was making its last load of timber from the land, a fire originated (519) on said railroad, "right at the track, right on the side, most by the tie," shortly after the engine had passed, and thence spread to and ignited plaintiff's woods (lying on both sides of the track), burning the unsold timber and undergrowth; and this action is brought to recover damages for such burning. Verdict and judgment in favor of plaintiff, and defendant appealed.

Plaintiff admits that the engine was in proper order, equipped with proper spark arrester, and that there was no negligence in that respect. But the ground of negligence upon which he relies is that an accumulation of leaves, brush and combustible material was permitted by defendant company to be and remain upon the right of way and near the right of way and when the track was constructed, instead of carrying off this combustible material defendant company piled it up alongside of the track and in dangerous proximity to it, and that sparks fell upon such and ignited the same, which communicated the fire to his land, causing damage complained of.

There is only one witness, Candace Williams, who testified to the origin of the fire, the substance of which is above quoted. She says she was 200 yards off and saw two little puffs of smoke rise up after the engine passed. She further testified that she was on that track a great deal of the time, and she had to pass backwards and forwards, and saw the condition of it before the fire and how it was laid down; "it was just cut down place enough for the train to go over and then put down the ties, and just ran the track anyway. There was nothing in the world taken away, just put the trees and bushes out of the way so the train could go along; the rubbish and things were lying all along up and down the sides. They never racked out anything in the world, just laid the cross-ties right on top of it." It appears that it was a temporary structure and was in use less than (520) two months. No one saw any sparks emitted from the engine, nor did any one know positively that any were emitted, nor that the fire caught in the rubbish or that there was any rubbish where it caught; but the circumstances furnished sufficient evidence to warrant such a finding of fact.

The material question involved in the case on appeal is raised by the second, fifth and twelfth exceptions. The second and fifth are taken in the refusal of the judge to nonsuit the plaintiff, and the twelfth to the following part of his charge to the jury: "If the defendant permitted the brush and combustible material to accumulate on its roadbed and a fire was communicated to the same by its engine and burnt over the plaintiff's land, then it would be negligence, and you will answer the first issue, `Did the defendant negligently and wrongfully burn the plaintiff's timber, as alleged in the complaint?' `Yes.'"

So the question raised is one of construction of the contract: Upon whom did the duty rest under its terms of providing against fire?

The principle of eminent domain is not involved in this contract nor in this case on appeal. No franchise is claimed, nor was any exercised. For his own private purposes an individual has as much right to construct, equip and operate a railroad for doing his own hauling as he has to use horse or other power for such purposes. Upon their contract defendant acquired no right of property in the land or right of control or possession thereof other than for the use therein expressed. Plaintiff knew when he made the contract that fire was necessary for generating steam in running the locomotive upon the railroad, and must be deemed to have had notice of the probable danger from sparks necessarily emitted from an engine; and having retained absolute control and possession of all the land lying adjacent to the track (as well as to that upon which the track laid, except so far as it was in use for the train and maintenance (521) thereof), it was his duty to have protected his adjacent land from the sparks and spread of fire. The contention of plaintiff is based upon the theory that the rules applicable to incorporated railroad companies (quasi public corporations, common carriers) apply to defendant company, but they do not. Quasi public corporations, with their right of eminent domain, have an easement in all the land condemned for right of way, and have the right to enter thereon when needed for their use, and even when not needed for their use they have the right to enter in order to remove whatever may be thereon, which would endanger the safety of its passengers or which might, if undisturbed, subject it to liability for injury to adjacent lands or property. Ward v.R. R., 109 N.C. 358, and 113 N.C. 566; Shields v. R. R., 129 N.C. 1. Wherefore such corporations, having such right of entry upon and control over their right of way, are held liable if grass and inflammable material are allowed to negligently accumulate thereon and become ignited from sparks, causing damage to adjacent land-owners by the spreading of the fire. Black v. R. R., 115 N.C. 667; Shields v. R. R., supra.

Under defendant's contract it had no right of way of specific width. Its domain and control extended no further than to put down its track on plaintiff's land and run its trains over it, and to use the ground in removing the timber and loading it on the cars, and such as was necessary in cutting and removing the timber from the land, and the use of such trees, undergrowth and dirt as would be necessary in constructing and maintaining its road. No right is given it to enter upon the lands for the purpose of cleaning the rubbish therefrom; the rubbish belonged to plaintiff; and having no right to remove the same it cannot be held liable for its remaining there.

But it may be argued that it cut and put rubbish there, (522) and therefore is liable for its being there. Be that so, yet it had a right to do that much, but had no right to do more without subjecting itself to an action of trespass. It had no defined rights of way under its contract for which it assumed any liability. Its duty under the contract was to so use its property as not to injure the property of plaintiff, and this the defendant did by properly equipping its machinery and operating it in a prudent and careful manner. Plaintiff entered into this contract with full knowledge of the dangers incident to running a locomotive across his land. He well knew of the condition of the woods through which the track would be constructed and of the inflammable matter which had accumulated thereon and would thereafter be likely to accumulate. So the duty under the contract rested upon plaintiff to protect his property and not that of defendant company. Having failed to provide against it plaintiff became his own insurer and assumed the risk rather than go to the expense of cleaning off or firing against the sparks which would probably escape from the engine.

Under this express contract between two private parties no duty arises from one to the other, except such as appears in terms or necessarily arises by implication from its context. And it nowhere appears therein that the defendant company obligated itself to assume the control and liability of a right of way such as is imposed upon a public railroad corporation. A public railroad corporation goes where it is licensed by law, carrying the dangers incident to its operation with it, even in spite of the protest of a landowner whose land it condemns and uses; while, as between the parties to this contract, the defendant company ran its locomotive over plaintiff's land with his consent, in order to enable defendant company to carry out a contract made with plaintiff which enabled plaintiff to sell (523) his timber and defendant company to purchase it.

There is no provision in the contract which imposes, by expression or implication, upon defendant company the duty of cleaning off the rubbish either from its track or the land adjacent to it, nor does it appear therefrom that it was in the contemplation of the parties that defendant company should assume any liability on account of the condition — foul or otherwise — of the plaintiff's land. If such had been their intention it ought to have been expressed. As it is not expressed it cannot be inferred, for defendant company might have refused to enter into such a contract and declined to purchase the timber. The rule of so using one's own property as not to injure the property of others was complied with by defendant company in using a properly equipped engine and operating it carefully and in a prudent manner, which is admitted to have been done.

There is error in the instruction excepted to and in not sustaining the motion to nonsuit.

New trial.