DAMAGES FKOM FOREST FIRES. 157 



preventetl. Moreover, the climate has been injuriously affected, and 

 droughts are much more common than formerly, owing to the dry and 

 parched nature of the whole country thus stripped of its vegetable cov- 

 ering, and left as a " blackened desert." 



In an article by Charles E. Elmer, of Bridgeton, N. J., in the report 

 above cited, some facts and suggestions are given that are worthy of 

 notice. He says : 



The year 1872 is noted, the country over, for the extent and destruction of timber- 

 land by fires. Trueitisthattheextentof buruinj? was principally owing to the remark, 

 ably continued dry weather from early spring until early fall. I have endeavored to as- 

 certain, measurably, the great loss by these frequent and destructive tires, but without 

 success. To assert that 100,000 acres have been burnt over within the State of New- 

 Jersey, at a money loss in timber of $1,000,000, would surely be within the bounds of 

 truth. These fires have been occasioned by the careless use (I say careless, when no 

 consideration was given to the great drought and the remarkably dry condition of the 

 8oil, and of all things lying thereon,) of what is called firing to burn sedge upon old 

 fields and hru>ih upon new clearings. From these causes much waste of valuable tim- 

 ber has been made, the escape fire extending for many miles, when under ordinary 

 circumstances it would have been limited to a few rods. 



The damage occasioned by sparks from locomotives has been almost beyond compu- 

 tation, as to the extent of acres and loss of timber, which under the average moist- 

 ure of the atmosphere and soil could hardly have occurred at all. Theee relations are 

 facts known to all men, and likely to occur again under like combination of circum- 

 stances. Now, as to a remedy to be had by force of law. 



It has been and is held as law in England that fire communicated by a passing en- 

 gine is prima facie proof of neglig>^nce in its use, and the onus is placed on the com- 

 pany to show that there has been no negligence ; that the engine was in proper order, 

 properly run ; had all known appliances to prevent fire from escaping, and that the 

 track oif the road was alike guarded. And this upon the ground that fire being a 

 dangerous element the legal responsibility is placed upon those using it to the damage 

 of others to show that all and every proper precaution and care was had in its use. 

 Upon the same principle, if a man uses a dangerous article upon his own land, he is 

 bound, at his peril, to keep it there, and cannot be excused for its escape, unless it be 

 by the act of God or some overpowering force. In this country this strict ruling has 

 been greatly relaxed, although it may be true yet that, in some of the States, railroads, 

 as also persons (for the same rule must hold good as to both), are held to the strict 

 English rule. 



In pome other States, as in our own, I think it is determined that the railroads are 

 not responsible for a communicated fire, while doing the lawful act of running their 

 engines, unless guilty of "negligence or folly," and the burden of proof is on the 

 plaintiff to show the negligence ; and directing that, with due diligence and proper care, 

 a railroad is not otherwise liable for communicating fire than as an individual is for 

 firing his neighbor's x^roperty by an accidental spark from his chimney. What con- 

 stitutes this "negligence and folly " is for the determination of a jury, each cas9 de- 

 pending upon the facts educed in evidence, and ofttiraes upon the favorable or un- 

 favorable standing of the railroad in the community in which the trial is had. 



Another vexatious question, troublesome alike to the courts and railroads, is, how 

 far the liability extends, even in case of negligence ; whether only the person imme- 

 diately damaged, or those damaged beyond, so far as the fire shall extend ? They say 

 the damage beyond the immediate firing is too remote to hold them to account. Upon 

 this our own courts have not formally passed. * * * How can there be a preventive 

 had against such losses as have occurred from fire in lfe72, under like circumstances 

 of great and continued drought, by the rulings of courts or by statutory provisions! 

 The great railroad highways for passage and freight, exrending all over the United 

 States, have revolutionized society and business, making rich the people thereof, and 

 increasing in value each acre of land through or near which the iron highway runs. 

 If by law yon require them to run their engines with smoke-stacks so constructed so 

 that no spark shall escape, then you diminish the speed unreasonably asked for by 

 travelers, at great risk of life, and^ou in a great measure destroy the motive-power 

 by removing the necessary draught. If by law you hold them to the strict English 

 rule, that any firing ia prima facie evidence of negligence, and put the onus of proof 

 on them, and, in addition, hold them to answer for all damages, however remote from 

 the origin of the fire, and abolish the rule of law that where the injury is the result of 

 concurrent negligence in both plaintifl" and defendant, no suit can be maintained — as 

 might be held to be the case where the owner allows the dry brush and leaves to accu- 

 mulate in the woods beside the railroad track — might it not work ruin to those com- 

 panies which are doing so much to build up and enrich the country ? I grant that 

 many of these companies are becoming too powerful and perhaps dangerous in the use 



