Appeal allowed.[[298]]
GALVESTON, H. & S. A. R. CO. v. SPINKS
Court of Civil Appeals, Texas, May 28, 1896.
Reported in 13 Texas Civil Appeals, 542.
Williams, Associate Justice. This case is submitted upon the facts found by the court below, upon an assignment which questions the correctness of the conclusion of law based upon them. In brief, those facts are, that appellant owns in fee a strip of land upon which its railroad is laid, and on each side of which lie cultivated lands owned by appellee. Upon the land owned by appellant there stands a natural growth of tall trees which shade and injure the crops upon appellee’s adjacent land, and also saps such land of its fertility. For this injury to crops and land the judgment appealed from was rendered. No act of defendant is shown beyond the construction and maintenance of its road and its omission to cut down its trees, it having removed only such portion of them as was necessary to permit the repair of its road and the operation of its trains. We know of no principle of law which authorizes the judgment. The land and the trees are the property of appellant, and it has the same right to them that appellee has to his land and crops. The exercise of one right is not an invasion of the other. If the presence of the trees impairs the productiveness of appellee’s land, or if the cultivation of the latter would injure the trees, these results would constitute no wrong by one owner to the other, but would only be the incidents of their ownership. No breach of any duty owed by appellant to appellee is shown. It is not stated that the roots or the branches of the trees penetrate or overhang appellee’s land. If they did, appellee had the right to remove such roots or branches as entered or overhung his land, or if damage was caused by them, it may be true that he could maintain an action for such damage. Wood on Nuisances, 112, 113, 306.
But no such case is made here either in the statement of the cause of action or in the facts found by the court. It is not shown that appellee has not kept its right of way in proper condition for the safe and proper operation of its trains, but the contrary is inferable from the findings. Had it failed to do so, this might be a breach of the duty which it owed to those interested in the manner in which it conducted its road, but not of one due to appellee to protect his land and crops from such damage as that of which he complains. It is urged that as there is no statement of facts, we should presume that enough was shown to sustain the judgment. But the conclusions of the trial judge show affirmatively the facts upon which the judgment is rendered, and the conclusion of law based upon those facts was excepted to by appellant in the court below and is erroneous. It is not a case where there is an omission to find some fact, but one in which a ruling erroneous in law is grounded upon facts found.
Reversed and rendered.
BACHELDER v. HEAGAN
Supreme Judicial Court, Maine, July Term, 1840.
Reported in 18 Maine Reports, 32.
The action was trespass on the case, to recover damages, alleged to have been done to the plaintiffs’ land, and to the fences and growth thereon, by the negligence of the defendant in setting a fire on his own land, near to the land of the plaintiffs, and in not carefully keeping the same.
At the trial before Emery, J., evidence was introduced by both parties. The counsel for the plaintiffs requested the judge to instruct the jury, that the plaintiffs were entitled to a verdict, if they were satisfied from the evidence, that the damage was occasioned by the defendant’s fire, unless he satisfied them that it was not through negligence or mismanagement on his part. The judge instructed the jury, that the burthen of proof was upon the plaintiffs to satisfy them, beyond a reasonable doubt, that the damage was occasioned by the defendant’s fire, and through the carelessness and negligence of the defendant in keeping the same; such carelessness and negligence being alleged in the plaintiffs’ declaration, and it not being contended by the plaintiffs that the fire was wilfully and maliciously set by the defendant. On the return of a verdict for the defendant, the plaintiffs filed exceptions to the ruling of the judge.[[299]]
The opinion of the Court was by
Weston, C. J. By the ancient common law, or custom of the realm, if a house took fire, the owner was held answerable for any injury thereby occasioned to others. This was probably founded upon some presumed negligence or carelessness, not susceptible of proof. The hardship of this rule was corrected by the statute of 6 Ann. c. 31, which exempted the owner from liability, where the fire was occasioned by accident. The rule does not appear to have been applied to the owner of a field, where a fire may have been kindled. It may frequently be necessary to burn stubble or other matter which encumbers the ground. It is a lawful act, unless kindled at an improper time or carelessly managed. Baron Comyns states, that an action of the case lies, at common law, against the owner of a house which takes fire, by which another is injured, and adds, “so if a fire be kindled in a yard or close, to burn stubble, and by negligence it burns corn in an adjoining close.” Com. Dig. Action of the Case for Negligence, A. 6.