McGibbon v. Baxter — 22 N.Y. St. Rep. 107

Majority

p. 107

George McGibbon, App’lt, v. Whittemore Baxter, Resp’t.

(Supreme Court, General Term, Second, Department,

Filed February, 11, 1889.)

Headnote

¡NEGLIGENCE—ADJOINING OWNERS—LIABILITY FOR FIRES COMMUNICATED TO ADJOINING LANDS.

The plaintiff and defendant were adjoining owners. The defendant set Are to some brush heaps on his own land. The ffre communicated to the soil, and slowly continued to burn for six weeks, and then extended upon the plaintiff’s land and did him injury. Held, that a man may set Are to his own land without becoming liable if the Are escape into his neighbor's premises; the case is not varied if the Are is started in a dry time and nothing is done to prevent the spread.

Appeal from a judgment in favor of the defendant, and dismissing the plaintiff’s complaint.

The plaintiff and defendant respectively own adjoining parcels of swamp lands which are covered with water several months every year. In August, 1886, the defendr ant, for the purpose of clearing up his land, set fire to some brush upon it.

The place where the fire was started was about one hundred yards from plaintiff’s line, the intervening space being

p. 108

the bed of a pond usually filled with water, but dry in times of drought.

There had been rain in August before the fire was started, but there followed a long period of very extreme ■drought lasting until the first of December.

The fire continued to burn on defendant’s lands for about six weeks, and the plaintiff knew of it. About the middle of October the fire got upon plaintiff’s land and destroyed a few trees, and also burned more or less into the soil. This action is brought for damages. 1

Upon the division line between the lands of plaintiff and the lands of defendant there was a ditch which had become nearly filled with grass and bushes. The fire was finally extinguished by digging ditches and throwing up fresh earth.

Upon the trial, after the plaintiff had rested his case, the ■defendant moved for a nonsuit on the ground that no negligence of the defendant had been proved.

The motion was granted, and judgment having been ■entered, the plaintiff appealed.

A. 8. Cassidy & Sons, for app’lt; E. ÜV. Brearston, for resp’t.

—There were no sufficient facts proven to make a case for a jury. The plaintiff 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 one hundred yards from defendant. There was a pond hole 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 J. R., 421; Stuart v. Hawly, 22 Barb., 619 .

The case is a very strong one for the defendant, because it was started 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 non-suit was, therefore, right, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.