29 Minn. 411 | Minn. | 1882
The action is to recover damages for tlie destruction of personal property claimed by plaintiff, and situated on land in his possession. Defendant’s servants set fire to dry grass on its right of way, and the fire spread over adjoining land and reached the land on which the personal property was. Negligence in kindling and guarding the fire is alleged. There may be some verbal inaccuracies in the charge, but as they are not likely to occur on a second trial we will not notice them. Defendant requested this instruction: “If you find that the place where the property in question was, was so situated, as to the railroad and prairie, as to be in apparent danger from fire, and that the plaintiff failed to take ordinary precautions to protect the same from fire, and that, by the exercise of reasonable care in this regard, the property in question would not have burned, you must find a verdict for defendant.” The court refused to so charge. As the facts are, the question presented is not as to the duty of a landowner near a railroad in respect to guarding his property against dangers from fire incident to the running of railroad trains, for the fire did not arise from such a cause; but it is as to the duty of a landrowner to anticipate and provide against danger which another owner may cause by setting fire to combustible matter on his own land; to anticipate that he will or may do so negligently, or be negligent in the care of a fire kindled by him.
The duty of an owner, where negligence is already committed and known to him, does not imply a duty to anticipate and provide against such negligence. We do not see how an owner can be called negligent because he does not foresee that his neighbor will neglect his duty of care, and will thereby cause danger to his property. In this case there could on the facts be no claim that, after the danger arose from defendant’s act, the plaintiff did not use the utmost care to avert it. He was not guilty of contributory negligence by not foreseeing and providing against the negligence of defendant. The request was rightly refused.
Part of the property destroyed was hay and part of it wheat and oats; the former cut by plaintiff without any right, but merely by trespass, on land belonging to defendant; the latter sowed and har
With respect to the wheat and oats there is no more difficulty, for they were not natural products of the soil, but came by the act and industry of the plaintiff. If he had not taken possession of and sowed the land, they would not'have existed. Also, it is not the owner of the soil who calls in question plaintiffs title. It was held in Liford’s Case, 11 Rep. 51, that, upon re-entry by a disseizee, the property in grain sowed and cut by the disseizor revests in the dis-seizee. The same was held in 1 Dyer, 31b, and again 2 Dyer, 173a. In Thomes v. Moody, 11 Me. 139, the disseizee, upon being restored to possession of the land by legal process, converted grain raised and gathered by the disseizor and still on the land, and it was held the disseizor could not recover for the conversion. In such circumstances it was held in Simpkins v. Rogers, 15 Ill. 397, that the owner could recover for a conversion by the disseizor; and the same was held in Crotty v. Collins, 13 Ill. 567. On the other hand, it was decided in Brothers v. Hurdle, 10 Ired. (N. C.) 490, that, though crops attached to the land when the owner is put in possession passed to him, he cannot maintain trover for those gathered by the trespasser while in possession, but that his remedy is damages by way of mesne profits. And in De Mott v. Hagerman, 8 Cow. 220, it was held that the owner could not maintain replevin for crops sowed by him and cut by a trespasser, but that his remedy was in trespass quare clausum. It seems to us more consistent with principle and justice, even where the controversy is between the owner and wrong-doer,
Order reversed, and new trial ordered.
