p. 382(Supreme Court, General Term, Second Department.Headnote
Negligence—Finns—Injuries to Adjoining Owners.Plaintiff and defendant were adjoining owners. Defendant set fire to some heaps of brush on his own land at a point 100 yards from the division line. The fire communicated to the soil, and, after burning slowly for six weeks, reached plaintiff’s land, and damaged him. It was a dry time, and the drouth continued until* the snow fell, and put the fire out, which was a very unusual drouth at that time of year. Held, in an action to recover for the injury, that defendant was not liable.
Appeal from circuit court, Orange county.
Action by George McGibbon against Whittemore Baxter, for injuries to plaintiff’s real estate, alleged to result from defendant’s negligence in allowing fire to escape from his land to that of plaintiff. Judgment for defendant, and plaintiff appeals.
Argued before Barnard, P. J., and Pratt, J.A. S. Cassedy <£- Sons, for appellant. B. A. Brewster, for respondent.
There were no sufficient facts proven to make a ease for a jury. The plaintiff and defendant are adjoining owners of land. The defendant set fire to some brush-heaps on his own land. The fire communicated to the soil, and slowly continued to burn for six weeks or more, and then entered upon plaintiff’s land, and did him injury. The place of the fire at the starting-point was some 100 yards from defendant. There was a pond-liole originally made by fires, and in a wet time filled with water. It was a very dry time when the fire was started, and no rains of any consequence fell, and the drouth continued until the snow of December put the fire out. There is no conflict in the cases upon the subject. A man may set fire to his own, and he is not liable to an action if the fire escape into his neighbor’s, premises. The case is not varied if the fire is started in a dry time, and nothing is done to prevent its spread. Clark v. Foot, 8 Johns. 329 ; Stuart v. Hawley, 22 Barb. 619 . The case is a very strong one for the defendant, because it was
p. 383started so far from the plaintiff’s land, and was only to burn some brush-heaps, and in view of the fact that it burnt six weeks to reach plaintiff’s. A drouth of this duration could not be anticipated in the fall of the year. The nonsuit was therefore right, and the judgment should be affirmed, with costs. All concur.