Pratt v. Atlantic & St. Lawrence Railroad

Tenney, J.

This action is for the recovery of damages done to growing timber, on the plaintiff’s land, by fire from the defendants’ locomotive engine, distant almost three hundred feet from the line of the railroad, communicated to materials growing and naturally lying on the land between the plaintiff’s premises and the railroad track, and thence spreading to the land of the plaintiff.

The suit is sought to be maintained under the statute of 1842, c. 9, § 5, which provides, “when any injury is done to a building, or other property of any person, or corporation, by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be held responsible, in damages, to the person or corporation so injured; and any railroad corporation shall have an insurable interest in the property for which it may be hold responsible in damages, along its route, and may procure insurance in its own behalf.”

The defendants deny their liability, and in support of their denial, rely upon the case of Chapman v. At. & St. L. Railroad Co., 37 Maine, 92. And it is insisted also by them, that they are not subject to the statute referred to.

The analogy between the cedar posts deposited some few rods from the railroad, and growing trees is not strong. The former, being considered, in the case cited, as movable property, having no permanent location, but from its nature left *584 for the purpose of being put to use, in some other place within a very short time, was not insurable property, so that it would be understood as falling within the purview of the statute.

But it cannot be said, with any propriety, that timber growing, and therefore attached to the soil, is movable property, having no permanent location, in the sense in which this language was applied to the cedar posts.

The property for which a railroad company may be liable in damages arising from a loss occasioned by fire communicated from a locomotive engine, is not confined either to real estate or personal property. Insurance may be effected upon either. And when a subject of insurance, the statute will apply, other things existing which will bring the case under its provisions. It will not be denied, that a dwelling-house, situated upon land of the owner, “along the route” of the railroad, is insurable. Merchandize in a store, situated in like manner, for the purpose of being sold in the store in which it is, may be regarded as insurable property.

It is true, that our attention has been brought to no case, where insurance upon growing timber has been effected. But this is not decisive of the question, before us, and whether there may be therein an insurable interest. The provisions of the statute are new in this State, and have not, it is believed, for any considerable length of time, made a part of the code of sister States. The necessity for the enactment, was regarded, undoubtedly, as the offspring of the new mode of locomotion by the agency of steam, to secure owners of property, under the increased risks, by the use of fire, in causing transportation of property and passengers. It, therefore, is not unreasonable to suppose, it was designed that certain species of property would fall within its meaning as being insurable, which had not before been extensively insured, if at all.

Growing trees are often to be regarded as more valuable to remain attached to the land on which they stand, than to be removed. They are often cultivated for profit, which their *585 growth is supposed to promise, or for ornament, by reason of' their foliage or otherwise. It cannot be assumed by any means, that they will be removed from the soil sooner than many buildings of permanent construction.

It cannot be doubted, that trees, standing upon the land, are much exposed to destruction from fires which exist in their vicinity; and when these fires, in certain seasons of drought, do commence among even growing timber, their ravages are extensive and ruinous to its owners. When land covered with trees is so situated as to be exposed daily to the fires scattered from the locomotive of a railroad train, experience has convinced those interested in such real estate, that the danger is certainly as great as that which would be incurred by the proprietors of buildings which are similarly situated in relation to a railroad. The statute is sufficiently comprehensive in its terms to embrace growing trees, and no reason is perceived for excluding them from the application which would extend to buildings.

It is very manifest, that a railroad company, under this provision, is not liable for an injury to property, in which it has no insurable interest; and it has such interest in property only as lies along its route. Under the word “along,” and, as an adverb in Webster’s Dictionary, is the following:— “Sax. and-lang or ond-lang ; Fr. au-long, le-long. See Long. The Saxons always prefixed and or ond, and the sense seems to be, by the length, or opposite the length, or in the direction of the length.” The first definition given is, “By the length; lengthwise; in a line with the length; as the troops marched along the bank of the river, or along the highway.” The first definition given of the word “long” is, “Extended, drawn out in a line, or in the direction of length, opposed to “short,” and contra-distinguished from “broad” or “wide.” Long is a relative term; for a thing may be long in respect to one thing, and short with respect to another.”

It is not deemed reasonable, that the Legislature should limit the liability of railroad corporations to a fire caused by its engine to property upon land immediately adjoining the *586 railroad track, when that upon a strip of land a few feet distant, owned by another proprietor, equally exposed, should be excluded. Under such a statute the security of an owner, where land was bounded upon the track, would be great or small according to the width of his lot, and the security, which would embrace the whole width, would not extend to his grantee, of a part of the same, most remote from the railroad.

The liability of a railroad company was held in Massachusetts, under a statute in all respects similar to the one now under consideration, to extend to a building, separated by a street from the one upon which the fire fell, and which it destroyed, the fire having been communicated from the latter to the former, by ordinary and natural means, and caused its destruction. And in the same case, it was considered, that the words “along the route,” would describe buildings being near and adjacent to the route of the railroad, so as to be exposed to the danger of fire from engines, but without limiting, or defining the distance. Hart & al. v. Western Railroad Corporation, 13 Met. 99 .

It cannot be doubted, that the Legislature designed to afford no greater security to property situated very near the railroad track, than to that which was more remote, provided each was equally exposed. And whether the distance from the line of the railroad, of the property destroyed, should be sixty or three hundred feet, the peril being the same, is an immaterial question, provided both are “along the route.” And we agree with the Court in Massachusetts, that, as the Legislature have prescribed no particular distance beyond which the railroad company is not liable, the definition of these terms must be determined by the answer to the question, Was the property destroyed, so near to the route of the railroad, as to be exposed to the danger of fire from engines ? And we do not doubt, that in this case, the growing trees were so near to the railroad as to be comprehended in the protection provided by the statute.

2. The defendants obtained their charter in the year 1845, *587 c. 195, Special Laws. Therein certain obligations are imposed upon them, which are similar to those which railroad corporations were under by statute of 1842, c. 9; and it is silent as to other duties, liabilities, obligations and restrictions, contained in that chapter, and does not in terms refer thereto; but does expressly confer upon the defendants all the powers and immunities, and makes them subject to all the duties and liabilities, provided and prescribed respecting railroads, in c. 81, R. S., not inconsistent with the express provisions of the charter. Hence, it is contended, that the statute under which this action is brought, is not designed to apply to the defendants.

Provisions in a statute absolutely inconsistent with those of another statute which is subsequent, are ordinarily regarded as repealed, without any repealing clause. But the simple incorporation into a private statute, like that of a railroad charter, of a portion of the provisions which are found in a public and general statute, previously enacted, cannot be treated as a repeal of other provisions which are omitted. Neither can the incorporation of such provisions into a railroad charter, as a part of the latter, exonerate the corporation from duties, liabilities and obligations, imposed upon similar corporations, by a general statute, to which no reference is made in the charter, unless the provisions of the general statute are inconsistent with those of the charter. Statutory enactments cannot be repealed by implication, if the implication does not necessarily follow from the language used.

But the statute under which this suit is sought to be maintained, is one of those remedial acts assigned for the protection of property peculiarly exposed by the introduction of the locomotive engine, operated by the means of fire, and applies to corporations which obtained their charter before its enactment. Norris v. Androscoggin Railroad Company, 39 Maine, 273. And the same general statute, being in force at the time the defendants obtained their charter, they are affected by its provisions.

The defence has no support from section 18 of the charter, *588 in -which the Legislature had debarred itself from imposing any other or further duties, liabilities or obligations. This provision looks only to the future, and can have no effect upon the statute of 1842, c. 9, to annul or modify any thing therein contained.

According to the agreement of the parties, the defendants are to be defaulted, and the damages are to be assessed by a member of the Court.