this action because it was guilty of contributory negligence in depositing its wood in such close proximity to the railroad track, with full knowledge of the danger from fire to which it would be subjected. The question whether the contributory negligence of a plaintiff, who is not a trespasser, can be successfully invoked in defense of an action founded upon the statute in question, has never been determined by the law court of this state. In every instance in which an instruction has been given to the jury that contributory negligence of the plaintiff was a defense to such an action, the verdict has been for the plaintiff, and the law court appears to have had no occasion to reconsider the question as a matter of law. In Sherman v. Maine C. R. Co. 86 Me. 422, 30 Atl. 69, an action based on the statute, the building destroyed by fire extended onto the location of the defendant's roadway some 6 or 8 feet, and the presiding judge instructed the jury "that if there was a want of ordinary care on the part of the plaintiff, in allowing his goods to remain in a building a part of which was within the located limits of the defendant's roadway, whether there by license or otherwise, and such want of care caused or contributed to the result, the plaintiff could not recover." In the opinion of this court it is said: "Could the railroad company rightfully claim more? Can the proposition be main tained that the mere fact that one corner of a building in which goods are kept or stored extends a few feet over one of the side lines of the roadway (though placed there, or permitted to remain there, by express license of the railroad company or its officers) will exonerate the company from all liability for injuries to the goods by fire communicated 'by its locomotive engines? . We think not. The statute contains no such exemption in express terms, and we think none is implied," Ingersoll v. Stockbridge & P. R. Co. 8 Allen, 438, and Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. ed. 356, being cited in support of that conclusion. The former case (Ingersoll v. Stockbridge & P. R. Co.) was based on a statute of the same purport as our own, and the court said: "There is nothing in this statement to show that any fault of the plaintiff contributed to the loss, if the buildings were lawfully placed where they stood. The fact that a building or other property stands near a rail. road, or partly or wholly on it, if placed there with the consent of the company, does not diminish their responsibility in case it is injured by fire communicated from their locomotives. The legislators have chosen to make it a condition of the right to run carriages impelled by the agency of fire that the corporation employing them shall be responsible for all injuries which the fire may cause." The latter case (Grand Trunk R. Co. v. Richardson) was a writ of error to the circuit court of the United States for the district of Vermont. The action by the defendant in error was founded on a statute of Vermont of the same scope and effect as those in Maine and Massachusetts. Evidence was admitted to show that such of the buildings destroyed as were within the lines of the railway had been erected there by the license of the company, and exceptions were taken to the refusal of the presiding judge to give the following instructions: "If the jury should find that the erection of the plaintiffs' buildings, or the storing of their lumber, so near the defendant's railroad track as the evidence showed, was an imprudent or careless act, and that such a location in any c 7.degree contributed to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the defendant's locomotive." In their opinion the United States Supreme Court say: "We think the court correctly refused to affirm this proposition. The fact that the destroyed property was located near the line of the railroad did not deprive the owners of the protection of the statute, certainly, if it was placed where it was under a license from the defendant. Such a location, if there was a license, was a lawful use of its property by the plaintiffs; and they did not lose their right to compensation for its loss occasioned by the negligence of the defendant." In New Hampshire a statute [N. H. Gen. Stat. chap. 148, § 8] like ours makes the railroad company liable "for all damages which shall accrue to any person or property by fire or steam from any locomotive or other engine on such road," and gives the company an insurable interest in property exposed along the line. In Rowell v. Railroad Co. 57 N. H. 132, 24 Am. Rep. 59, it was distinctly held, in separate opinions, by two of the justices, that the liability thereby imposed is that of insurers, and that the doctrine of contributory negligence does not apply. In the leading opinion of Ladd, J., it is said: "The liability of the railroad is made absolute by the statute. No question of care or negli gence on their part is left open. If they throw sparks or fire upon the land of an adjoining owner, or allow their fire-that is fire from their engines-to escape upon land of such owner, they are made responsible in the same way as the owner of cattle whose nature it is to rove is liable for the damage they do in case they escape upon the land of another, and in the same way one is liable for damage caused by filth or noxious odors originating or accumulating upon his land and passing therefrom to that of another. There is no rule of law that requires the plaintiff to so use his land that it shall not be exposed to injury from the act of another, especially when that act is impliedly forbidden by law. And, even without the statute, the throwing of a spark or coal of fire upon a pile of shavings which I have negligently suffered to accumulate near a house I am building is as much a trespass as would be the throwing of a spark or coal upon shavings which I have packed away, using ordinary care to insure their safety. So, in Fero v. Buffalo & State Line R. Co. 22 N. Y. 215, 78 Am. Dec. 178, Bacon, J., says: 'It is difficult to maintain the proposition that one can be guilty of negligence while in the lawful use of his own property upon his constitute such contributory negligence as would bar the plaintiff of his right of recovery, and added: "But there is another ground upon which this plea should have been denied, and that is that by virtue of § 2615 the defendant is made an insurer against fire set by its engines, and it is a familiar rule that contributory negligence, short of fraud, does not furnish any defense to an action by the insured on his policy of insurance; and this was the view taken and enforced in Rowell v. Railroad Co. 57 N. H. 132, 24 Am. Rep. 59." In Iowa, under a similar statute, which appears as § 2056 in the Revised Code of 1877, it was also held by the court of last resort in that state, in West v. Chicago & N. W. R. Co. 77 Iowa, 654, 35 N. W. 479, and 42 N. W. 512, that the rule of contributory negligence was not applicable. In the opinion the court said: "The instruction made the defendant liable regard. Iless of the question of the plaintiff's negligence. . It may be conceded that, prior to the statute, contributory negligence on the part of the plaintiff in a case like this would defeat his recovery. But the .. statute, we think, changes the rule. own premises. The principle contended for by the defendant's counsel, if carried to its logical conclusion, would forbid the erection of any building whatever upon premises in such proximity to a railroad track as would expose them to the possibility of danger from that quarter.' In Vaughan v. Taff Vale R. Co. 3 Hurlst. & N. 750, Martin, B., says (arguendo): 'It would require a strong authority to convince me that, because a railway runs along my land, I am bound to keep it in a particular state.' And Bramwell, B., in delivering the opinion of the court in the same case (p. 752), says: 'It remains to consider another point made by the defendants. It was said that the plaintiff's land was covered with very combustible vegetation, and that he contributed to his own loss. We are of opinion this objection fails. The plaintiff used his land, in a natural and proper way, for the purposes for which it was fit. The defendants come to it, he being passive, and do it a mischief.' think the manifest intention of the legislature was to cast upon the proprietors of railroads the substantial liability of insurers against fire with respect to the property specified; and, that being so, the same rule as to contributory negligence by the plaintiff that obtains between the parties to a fire policy in case of loss should be applied." In the concurring opinion in Rowell v. Railroad Co. 57 N. H. 132, 24 Am. Rep. 59, Chief Jus- In 3 Wood, Railroads, p. 1602, the author tice Cushing says: "It seems to me that the says: "In some of the states railway comeffect of this legislation is to make the pro- panies are made liable, irrespective of the prietors of a railroad liable as insurers. This question of negligence, for fires set by their construction of the statute makes the liabil-engines, and, as a compensation for this exity exactly commensurate with the indem- traordinary liability, are given an insurable nity which the proprietors are entitled to pro- interest in such property. . Under vide for and to claim under the statute. these statutes the plaintiff is only required Negligence, either of the railroad or to show that the fire was communicated from of the landowner, would not, according to the the defendant's 'engines,' and no degree of authorities, be a defense to an action by the care on the part of the defendant will defeat proprietors to recover on their policy the its liability. The company's liability is amount of the loss insured. It would be odd that of insurer, and the contributory negli enough if the proprietors could recover on gence of the plaintiff, unless it amounts to their policy, and then turn round and defeat actual fraud, by an intentional exposure of the property owner on the ground of con- the property, will not, therefore, operate as tributory negligence. The jury ought a defense." to have been instructed that no negligence of the plaintiff would discharge the defendants unless so great as to be equivalent to fraud." In 1887 a statute of precisely the same effect as those above considered was enacted in Missouri. It is § 2165 of the Revised Statutes of Missouri of 1889, and is substan-72] tially a transcript of the Massachusetts act. In 1893 it came before the supreme court of that state for construction in the case of Mathews v. St. Louis & 8. F. R. Co. 121 Mo. 298, 25 L. R. A. 161, 24 S. W. 591. At the trial of the cause the defendant company contended, among other grounds of defense, that the plaintiff was guilty of contributory negligence in permitting large quantities of dry grass, leaves, weeds, and other inflammable matter to remain upon his premises, adjacent to the railroad, and near the buildings destroyed. After considering the evidence, and reviewing the authorities applicable to it, the court held that the conduct of the plaintiff in the respect named did not So, also, in 1 Thomp. Neg. 171, referring to statutes which impose such an absolute liability on railroads, the author says: "To an action under them, the defense of contributory negligence is not good." In Michigan, the statute of 1872 [§ 36, p. required every railroad company to erect and maintain fences on each side of its road, and provided that, until such fences were duly erected, the corporation should be “liable for all damages done to cattle, horses, or other animals thereon, and all other damages which may result from the neglect of such company to construct and maintain such fences." In Flint & P. M. R. Co. v. Lull, 28 Mich. 510, an action to recover damages sustained before the erection of such fences, it was held that negligence of the plaintiff in the care of his property, contributory to the injury, constituted no defense. In the opinion of Judge Cooley the court says: "Were this a common-law ac tion, it is clear that such contributory neg. But this is not a common-law action. It is an action given expressly by a statute, the purpose of which is, not merely to compensate the owner of property destroyed for his loss, but to enforce against the railway company an obligation they owe to the public. And the decisions may almost be said to be uniform that in cases like the present, arising under such statutes, the mere negligence of the plaintiff in the care of his property can constitute no defense. Indeed, if contributory negligence could constitute a defense, the purpose of the statute might be, in a great measure, if not wholly, defeated; for the mere neglect of the railway company to observe the directions of the statute would render it unsafe for the owner of beasts to suffer them to be at large, or even on his own grounds, in the vicinity of the road, so that, if he did what, but for the neglect of the company, it would be entirely safe and proper for him to do, the very neglect of the company would constitute its protection, since that neglect alone rendered the conduct of the plaintiff negligent." It is undoubtedly true, as stated by the court in Hussey v. King, 83 Me. 568, 22 Atl. 476, that the rule of contributory negligence "applies, not only to actions given by the common law, but also to those given solely by statute, where the gist of the action is the default, omission, or carelessness of the defendant." Of this class are the actions authorized by statute for damages "suffered through any defect or want of repair in any highway." They are based essentially on the fault of the town in not keeping its ways "safe and convenient." So, also, is the action based on § 23 of chapter 17 of the Revised Statutes, which provides that "persons engaged in blasting lime rock or other rocks shall before each explosion give seasonable notice thereof," and makes any per son violating this provision "liable for all damages caused by any explosion." Here the ground of liability is obviously an omission or neglect to give the seasonable notice required by the statute; and in Wadsworth v. Marshall, 88 Me. 263, 32 L. R. A. 588, 34 Atl. 30, it was accordingly held that the rule of contributory negligence on the part of the plaintiff was applicable. See also Taylor v. Carew Mfg. Co. 143 Mass. 470, 10 N. E. 308. "There is, however, another class of actions in tort, not based on negligence, in which the defendant's care or want of care is not in issue; in which some direct, positive act of the defendant makes the cause of action. In this class of actions there is no reason nor place for such a rule." Hussey v. King, 83 Me. 568, 22 Atl. 476. Actions based on the statute in question in the principal case, making a railroad corporation responsible for loss by fire communicated by its locomotive engine, fall naturally into this class. The question of the defendant's negligence is not an issue. It is immaterial that the locomotive is equipped with the most ingenious spark ar rester that human ingenuity can devise, and its construction otherwise of the most suit able material and approved design. It is immaterial that it is operated and managed in the most skilful and prudent manner known to experienced firemen and engineers. The simple fact that the fire causing the injury was communicated by one of the defendant's locomotive engines is sufficient to establish the cause of action. The absolute liability thereby cast upon the defendant cannot be defeated by proof of the highest possible degree of care in the management of its railroad trains. As a compensation for this extraordinary liability, it has been seen that the statute gives the railroad corporation "an insurable interest in the property along the route." No case has been cited by counsel, or otherwise brought to the attention of this court, from which it appears that the contributory negligence of the plaintiff has in fact been successfully invoked in de fense of an action based upon such a statute, or in which it has been directly determined, as a matter of law, by the court of last resort in any state, that the doctrine of contributory negligence is applicable to such an action. The only case cited by counsel for defendant upon this branch of the case is Post v. Buffalo, P. & W. R. Co. 108 Pa. 585, and that was an action to enforce the defendant's liability for negligence at common law. In the case at bar, however, the justice presiding at the trial, in his charge to the jury, clearly and distinctly gave the defendant company the full benefit of this rule of contributory negligence. Yet, by returning a general verdict for the plaintiff corporation, the jury necessarily found, as a matter of fact, that, under the circumstances disclosed by the evidence, there was no want of ordinary care and prudence on the part of the plaintiff corporation in occupying land adjacent to the defendant's roadway in the customary manner for the purposes of a piling ground, or, if there were, that such want of care did not proximately contribute to the destruction of the property. It is true, as noted at the beginning of this opinion, that there was a conflict of testimony as to whether any part of the plaintiff's poplar was piled within the defendant's roadway; but the positive testimony of William P. Oakes, the land surveyor and civil engineer called by the plaintiff, that the westerly tier of poplar, the location of which was still plainly marked by the "remnants of the pile," was 33 feet from the center of the main track, with other corroborating evidence, was sufficient to authorize the jury to find that no part of the wood was piled within the defendant's roadway. The land on which the wood was piled was occupied by the plaintiff by license of the defendant, as it had been occupied by the plaintiff company and its predecessors for more than ten years prior to that time. It was a lawful occupation, and the plaintiff's rights and the defendant's liability with respect to injury by fire from a locomotive were precisely the same as they would have been if the plaintiff had been the owner of the land. Ingersoll v. Stockbridge & P. R. Co. 8 Allen, 438, and Grand Trunk R. Co. v. Richardson, 91 U. S. | so, that it did not contribute as a proximate 454, 23 L. ed. 356. Under these circum- cause to the loss of the plaintiff's property. stances, even when the action is founded on The fire appears to have caught from the common-law liability of the defendant coals falling upon the track, and to have for negligence in the management of its been thence communicated, through the dry trains, the great weight of authority in this grass, to the bottom of the nearest pile of country and in England supports the propo- wood; but the defendant had full knowledge, sition that a landowner is not justly charge- from daily observation, of the location of able with contributory negligence for such a this wood, and of all the existing conditions reasonable and legitimate use of his own at that station. And it is a principle of faland. 3 Wood, Railroads, § 338, and cases miliar application in cases of negligence, cited. "He is not required to anticipate where the plaintiff's negligence is also consuch [the defendant's] negligence, nor to nected with the injury, that if, by the exergive up the lawful use of his property in cise of ordinary care and skill, the defendsuch manner as would be deemed prudent ant might have avoided the injury, the under ordinary circumstances. plaintiff's negligence cannot be set up in deNeither will the knowledge of an adjacent fense of the action. 2 Wood, Railroads, § landowner that engines on the road are ha- 319a; Addison, Torts, 41, "For, however bitually so mismanaged or defective as to nearly related two separate negligences may cause frequent fires upon or near the track be, the one cannot bar an action for the othmake any difference. Such a fact may add er unless it is contributory; and though an to the evidence of defendant's negligence, unseen position might contribute to an accibut cannot add to the plaintiff's duties." 2 dent, a discovered one cannot." Bishop Shearm. & Redf. Neg. 5th ed. § 680. Such Noncont. Law, § 466. See also Davies v. ordinary rights of the adjacent landowner Mann, 10 Mees. & W. 546; Grand Trunk R. are presumably considered in the estimation Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 of damages for the land originally taken for Sup. Ct. Rep. 679; O'Brien v. McGlinchy, the defendant's roadway. 68 Me. 557; Pollard v. Maine C. R. Co. 87 Me. 51, 32 Atl. 735; Atwood v. Bangor, 0. & O. T. R. Co. 91 Me. 399, 40 Atl. 67. It was a question between two corporations, with respect to which the deliberations of the jury would not probably be influenced by sympathy or prejudice, and this court would not be warranted by the facts in setting aside their verdict. After a careful examination of all the facts in this case having any material relation to this question of negligence on the part of the plaintiff, it is the opinion of the court that, if the defendant had been entitled to the instruction given in its favor upon this point, there was sufficient evidence to authorize the finding of the jury that the plaintiff was not guilty of negligence, or if Motion and exceptions overruled. MICHIGAN SUPREME COURT. company without the consent of the city, by virtue of 3 How. Ann. Stat. § 4904e, which expressly authorizes corporations to allenate their property. The acceptance of the privileges granted by laws of the state to a telephone company and permission to use streets duly given by a municipality, followed by the expenditure of money by the corporation in valuable improvements, constitutes contract which neither state nor municipality can impair or destroy, unless the power to do so is reserved in the grant itself or in the Constitution. (October 17, 1899.) NOTE.-Right to transfer or mortgage privilege | The right to assign was upheld in both cases to use streets for telegraph, telephone, or other quasi-public purposes. Most of the cases treating of this subject have turned upon the question as to the corporate powers of the grantee of the privilege, rather than upon the language of the grant, the intention of the municipality, or the nature of the privilege as distinguished from other franchises of quasi-public corporations. San Luis Water Co. v. Estrada, 117 Cal. 168, 48 Pac. 1075, and Philadelphia v. Fairmount Park Comrs. 4 Pa. Dist. R. 445, however, were cases in which the grants were to individuals. In the former the grant ran expressly to the grantee and his assigns, and in the latter the granting power assented to the assignment. The principle questioned by the principal case, that where a franchise or privilege intended in large measure to be exercised for pub lic good has been granted to a corporation It cannot be transferred without consent of the legislature, seems to be established by the weight of authority, including many cases not coming within the subject of this note, notably Thomas v. West Jersey R. Co. 101 U. S. 71, 25 L. ed. 950, which held a railroad lease to be ultra vires. Under the influence of this principle the right Reversed except as to so much of the decree as required the establishment of reasonable rules and regulations. Statement by Grant, Ch. J.: ROSS-APPEALS from a decree of the Cir- | stations and exchanges, 3,660 miles of lines cuit Court for Berrien County in a suit and 6,550 miles of telephone wire, besides to restrain defendant from interfering with several hundreds of miles of pole lines and complainant's right to maintain poles and wires used in the operation of local exwires in defendant's street; defendant ap- changes. April 4, 1881, the Telephone & pealing from so much of the decree as en- Telegraph Construction Company, a corporajoined it from interfering with such right, tion engaged in the telephone business in and plaintiff appealing from so much as at- this state, presented a petition to the comtempted to establish rules and regulations mon council of the village of St. Joseph for for the maintenance of the poles. permission to construct, maintain, and operate such a system in said village. Permission was duly granted, and that company proceeded at large expense to erect poles and stretch wires within the lines of the streets and alleys of said village until June 5, 1891, when said village became incorporated as a city. Complainant duly acquired by purchase all the property, rights, and privileges of said construction company. It has since continued to do business in said city, and has furnished to said city two telephones free of charge, and four others at rates below the usual charges. It has permitted said city to occupy certain poles with its fire-alarm wires without charge. August 3, 1897, complainant erected in a good and workmanlike regularly organized under the laws of Michigan may mortgage or convey its property or franchises as though it were a private individual subject only to such restrictions as the legislature may have imposed. It is not entirely clear whether the court intended to decide in favor of alienability without legislative sanction, or merely that such sanction had been granted in Michigan. If the former, the case appears to be without the direct support of other cases, at least those involving street franchises. The averments of the bill of complaint are substantially as follows: Complainant is a corporation organized under act No. 129, Pub. Acts 1883 (3 How. Anno. Stat. chap. 102a, § 3718a). Its principal office is in Detroit. It carries on in the city of St. Joseph and other cities and towns in the state the construction, maintenance, and operation of telephone lines and exchanges, and connects with the lines of other companies without the state. It has in this state about 460 toll of water, gas, or electric-light companies, to sell, lease, or assign their franchises in the streets, in the absence of special legislative authority, has been denied in Bath Gaslight Co. v. Claffy, 74 Hun, 638, 26 N. Y. Supp. 287; Visalia Gas & E. L. Co. v. Sims, 104 Cal. 326, 37 Pac. 1042; Brunswick Gaslight Co. v. United Gas, Fuel, & Light Co. 85 Me. 532, 27 Atl. 525; State ex rel. Milwaukee Street R. Co. v. Anderson. 90 Wis. 550, 63 N. W. 746; State ex rel. Badger Illuminating Co. v. Anderson, 97 Wis. 114. 72 N. W. 386. The power of a street-railway company to mortgage its franchise to occupy the streets, in the absence of distinct legislative authority, is denied in Richardson v. Sibley, 11 Allen, 65, 87 Am. Dec. 700, and Middlesex R. Co. v. Boston & C. R. Co. 115 Mass. 347. It is true that the court in the former case, in replying to the contention that the power had been conferred by certain statutory provisions, referred as decisive of the case to a statute providing that "no street-railway company shall sell or lease its road or property unless authorized to do so by Its charter or by special act of the legislature," but in a previous part of the opinion it recognized and stated the doctrine of nonalienability without distinct legislative authority. Wright v. Milwaukee Electric R. & Light Co. 95 Wis. 29, 36 L. R. A. 47, 69 N. W. 791, holds that a franchise to operate a street railway is Inalienable at common law, but that the power to transfer the same has been conferred by statute in Wisconsin. Rafferty v. Central Traction Co. 22 Pittsb. L. J. N. S. 15, holds that unless authorized by its charter a street passenger railway company has no power to lease its road or franchise to a traction company. A telegraph company cannot alien its franchise to maintain its line in the streets without express power from the legislature. Philadelphia v. Western U. Teleg. Co. 11 Phila. 327. The doctrine of non-alienability without legislative sanction was questioned in Joy v. Jackson & M. Pl. Road Co. 11 Mich. 155, and apparently repudiated in Detroit v. Mutual Gas Co. 43 Mich. 594, 5 N. W. 1039, a case involving the rights of a purchaser under foreclosure of a mortgage on the property and franchises of a gas company. The court says that a corporation Louisville Trust Co. v. Cincinnati, 47 U. S. App. 36, 76 Fed. Rep. 296, 22 C. C. A. 334, states that the grant of a right to enter upon and occupy a public street for an electric street railway is capable, in the absence of express restrictions, of being sold, conveyed, and assigned or mortgaged. The right in that case, however, was not disputed, and was, in fact, conferred by statute, and the statement was made arguendo in illustrating the character of such a right as property. Union P. R. Co. v. Chicago, R. L & P. R. Co. 163 U. S. 564, 41 L. ed. 265, 16 Sup. Ct. Rep. 1173, recognizes the general rule that a contract by which a quasi-public corporation disqualifies itself to perform its duties without the consent of the state is invalid, but makes the distinction that the contract Involved in that case, though termed a "lease," was a mere agreement for trackage rights, and upheld it, although it was not expressly authorized by charter. Evans v. Boston Heating Co. 157 Mass. 37, 31 N. E. 698, upholds the right of a corporation organized to supply heat through pipes to be laid in public streets to mortgage its franchise without special legislative authority, distinguishing the case from Richardson v. Sibley, 11 Allen, 65, on the ground that under the statute such a company is not a quasi-public corporation, but a manufacturing corporation. Oakland R. Co. v. Oakland, B. & F. Valley R. Co. 45 Cal. 365, 13 Am. Rep. 181, holds that the question whether a franchise to construct a street railway can be divided is one that concerns the public alone, and cannot be raised by a rival company. The effect of charter and other statutory provisions to eonfer the power to mortgage, assign, or lease such privilege has been passed upon in a number of cases. |