FIRE-Continued.

8. The evidence in this case considered, and held sufficient to justify a finding
of negligence on the part of the defendant. Id.

9. From the fact that a railroad runs through a prairie country, with wild
grass growing upon its right-of-way and adjacent thereto, it cannot be said, as a
matter of law, that it is not incumbent upon the railroad company to cut or
destroy the wild grass upon its right-of-way and outside its road-bed. Id.

10. The evidence tended to show that a fire started in the grass, near and to
the leeward of a railroad track, a few minutes after an engine had passed, and
that no person, or other fire than that of the engine, was in the vicinity at the
time. Held, that this was sufficient to justify the jury in finding that the fire
was scattered or thrown from the passing engine. Also, that this fact being
established, a presumption of negligence on the part of the railroad company
arose, and, under Minnesota Gen. St. 1878, c. 34, § 60, the burden of proof
rested upon it to show affirmatively that it was not guilty of any negligence,
either as to the construction, condition, or manner of operating its engine. Kar
son v. Milwaukee, etc., R. R. Co. 501.

11. The evidence in this case considered, and held to justify the jury in find-
ing that it did not satisfactorily rebut this presumption of negligence as to the
condition of the engine which set the fire. Id.

12. The fact that plaintiff had not plowed around stacks so as to prevent fire
from reaching them, was not negligence per se. Whether it amounted to negli
gence was a question of fact to be determined by the circumstances of the
case. Id.

13. Where the issue was whether the fire which destroyed plaintiff's barn was
caused by negligence of the defendant in running its engine, defendant showed
that the engine was a perfect one in all respects, and was provided with suitable
appliances in every respect for preventing the escape of fire; and the persons in
charge of the engine at the time testified that it was run in a careful manner,
and that the spark-arrester on the smoke-pipe and the fire-box were both closed,
so that no dangerous coals or sparks could escape therefrom. The testimony
for plaintiff was not only that the barn was found on fire shortly after the engine
passed, but that, at the time of such passage, the engine was emitting sparks in
great numbers, and coals an inch or more in length; that such sparks and coals
struck the barn, and some of them went under it; that coals of a similar size
were seen immediately after on the track, and on the snow beside the track, in
the immediate vicinity of the barn; and that several stumps a short distance
from the barn and near the track were also found to be on fire a short time after.
Officers of the railway company also testified that if the engir e had been prop-
erly run and cared for no coals of the size described could have escaped. Held,
that the court did not err in refusing a non-suit, and submitting to the jury the
questions whether the fire was communicated to the barn from the engine, and
whether the latter was negligently managed. Brusberg v. Milwaukee, etc., R. R.
Co. 505.

14. The evidence as to the burning of the stumps adjoining the track, as above
stated, was properly admitted against defendant's objection; as was also testi-
mony showing how the fire emitted by the engine on the occasion in question
compared with that emitted by engines on the road at other times. Id.

15. Objection that judgment in this case for value of certain wheat destroyed
by fire, kindled by sparks of passing engine, included wheat grown ou right-of-
way land, held, could not be considered upon the record as presented, and not
having been raised in the court below. Slosson v. Burlington, etc., R. R. Co. 509.
16. Abstract in this case held to contain evidence justifying an instruction that
the fact that the engine had set several successive fires on the same trip and the
same day, would tend to show improper construction, operation, or want of re-
pair, and that such instruction was proper. Id.

17. Sowing wheat upon right-of-way land, and failing to remove the stubble
therefrom after harvesting, held, not negligence per se. Id.

18. Where action was for injury resulting from the negligent manner in which
a railroad was operated, held, that an instruction requested, to the effect that
payment for right-of-way was included in the compensation for any loss result-

FIRE-Continued.

ing from the proper and careful operation of the road through plaintiff's prem-
ises was properly refused. Id.

19. In an action against a railroad company to recover damages for injuries
occasioned by fire alleged to have been kindled by sparks escaping from defend-
ant's engine, it was held competent for the plaintiff to prove that two weeks after
the fire the same engine was seen to emit such sparks at the point where the fire
occurred as would have been sufficient to occasion it. Nashville, etc., R. R.
Co. v. Tyne, 515.

20. In said case it was held competent, the building burned having been 20 or
30 feet from defendant's track, for the plaintiff to ask a witness whether he
would not consider a spark-arrester out of order which threw live sparks 30 or
40 feet. Id.

21. The court in the above case charged that the company had the right to use
steam and would not be liable for unavoidable injuries, but would be responsible
for injuries resulting from a defective engine or smoke-stack not coming up to
the improvement generally tested and used according to the present state of art,
or for the want of all necessary precaution to avoid the mischief. That the
engine and smoke-stack must have been good and sufficient according to the
present state of the art, and must have been under the charge of skilful and com-
petent employees. Held, that this instruction was correct. Id.

22. A complaint against a railroad company, alleging that the plaintiff con-
tracted with the defendant to deliver wood on the defendant's track, and accord-
ingly did deliver one hundred and twenty-five cords, of the value, etc., that the
defendant cut down grass and weeds on its track and grounds, which, with
other inflammable material, it negligently permitted to accumulate at the place
until very dry, when they were set on fire by the passing trains, negligently
operated on the road by the defendant, by reason of which the wood was set on
fire and consumed, does not sufficiently show that the injury was the result of
defendant's negligence, and is bad on demurrer. Pennsylvania R. R. Co. v.
Galentine, 517.

23. A complaint for destruction of property by the negligence of the defend-
ant, which does not show that there was no contributory negligence on the part
of the plaintiff, is bad on demurrer. Id.

24. In an action against a railroad company for damages sustained by the
burning of a rick of wood piled along its track, alleged to have been set on fire
by the locomotive of a passing train, the complaint not having been demurred
to, the following charge of negligence is sufficient after verdict: "The defend.
ant's locomotive emitted sparks which communicated with said wood and de-
stroyed it, ... through the carelessness of the defendant and her agents and
employees, without the fault of the plaintiff." Pittsburgh, etc., R. R. Co. v.
Noel, 524.

25. The title to wood delivered on the line of a railroad, in pursuance of a con-
tract which required a measurement before acceptance, did not pass before the
measurement was made, though unreasonably delayed. Id.

26. In such case, the piling of the wood by the plaintiff, with the consent of
the defendant, along the line of the railroad where it was more liable to and did
take fire, did not constitute contributory negligence on the part of the plain-
tiff. Id.

27. In such action it is not error to instruct that negligence is a question of
fact to be determined by the jury according to the circumstances of the case.
Nor that, in that connection, the jury might consider whether the defendant's
employees were negligent in reporting the imperfect condition of screens on the
smoke-stacks of the locomotives. Nor that, if the season when the fire occurred
was unusually dry, the defendant was bound to take extra precautions against
fire. Id.

28. It was not necessary that the proof should show from which engine the
fire escaped. Id.

29. It was competent in the case to show the manner in which the defendant's
engines emitted fire shortly after the time of the fire in question. Id.

See NEGLIGENCE, 1; LESSEE, 1.

7 A. & E. R. Cas.-42

FIRE, DESTRUCTION OF FREIGHT BY, 398.

See CARRIER, 6, 7.

FORECLOSURE OF MORTGAGE.

See MORTGAGE.

FOREIGN CORPORATION, POWER OF, TO LEASE ROAD, 249.

See LEASED ROAD, 2.

HANNIBAL AND ST. JOSEPH R. B., LIEN OF STATE ON, 181.
See CONSTITUTIONAL LAW, 1.

HIGHWAY.

See STREET.

HUSBAND AND WIFE, RECOVERY OF DAMages for DEATH OF, 25.
See PLEADING AND PRACTICE, 3, 6.

INJUNCTION.

It seems that the chancery court which awarded the injunction has the in
herent power, on deciding against the complainant, to proceed in the same suit
to assess the damages arising from the injunction, and will not leave the parties
to an action at law on the injunction bond. Russell v. Farley, 453.

See EMINENT DOMAIN, 1; LEASE, 4; PLEADING AND PRACTICE, 1, 2.
INJUNCTION TO RESTRAIN Collection of TAXES, REMEDY at Law, 249,
See PLEADING AND PRACTICE, 4.

WHEN RAILROAD HAVING USE OF ANOTHER ROAD AGREES TO AD-
VANCE MONEY TO LATTER TO PAY TAXES, 249.

See PLEADING AND PRACTICE, 5.

WHEN A FOREIGN CORPORATION CANNOT USE, TO ENJOIN TAXES, 249,
See PLEADING AND PRACTICE, 6.

AS AGAINST BUILDING RAILROAD IN STREET, 93.

INTEREST.

See STREET, 4.

Interest is not recoverable in an action for the loss of property, destroyed
through negligence. De Steiger v. Hannibal, etc., R. R. Co. 492.

INTERNAL REVENUE. STAMPS ON BONDS, 212.

See BOND, 33.

JUDGMENT AGAINST A COUNTY BINDING ON ALL TAXPAYERS, 183.

See TAX, 2.

JURISDICTION IN CHANCERY, REMEDY At Law, 249.

See PLEADING AND PRACTICE, 1, 2, 3; INJUNCTION, 1; RECEIVER, 1,

GRASS ON RIGHT OF WAY.

See FIRES, 4-12, 15-18.

1. Unless authorized by statute a railroad corporation organized under the
General Railroad Act has no authority to transfer or lease its road. Troy, etc.,
R. R. Co. v. Boston, etc. R. R. Co. 49.

2. The A. and V. R. R. Co. having purchased the road and franchises of the
A. N. R. R. Co. on mortgage foreclosure, leased a portion of the road, also its
rolling stock, to the R. and S. R. R. Co. during the term of its corporate exist-
ence, with a proviso that in case any portion of said road east of the Hudson
River should be used as a railway by it, or under it, the lessee might terminate
the lease on notice. Negotiations were then pending between plaintiff and the
A. and V. R. R. Co., for the control, by the former, of the portion of the road
thus referred to, in pursuance of which plaintiff removed the rails from so much
of said road as was not leased to the R. and S. R. R. Co., which were sold and
the money paid over to the A. and V. R. R. Co. Plaintiff's road was a short
distance from and ran nearly parallel with said portion of the A. and V. Co.'s
road so abandoned, and they were competing roads. The negotiations finally
resulted in a lease, executed in 1862, from the A. and V. R. R. Co. to plaintiff,
which recited the lease to the R. and S. R. R. Co., and that the residue of the
road "has for a time ceased to be used for the transportation of persons and
property," and for a nominal consideration leased such residue, the lands upon
which it was constructed; and all the alienable rights and privileges of the les-
sor pertaining to the demised premises, so long as the parties should continue to
be railroad corporations, plaintiff covenanting to perform all acts required to be
done in relation to the operation or maintenance of the demised line, and to in-
demnify the lessee against any non-performance or neglect, the indemnity, how-
ever, not to extend to any damage to the lessor accruing to it from the neglect
to repair or operate, unless the repairs or operation should be required by judg.
ment or order of court. The lessor reserved the right to abandon the demised
road, to change its route, or terminate its road at the intersection with that of
the R. and S. R. R. Co., if required to protect it and the R. and S. Co., in the em-
ployment of that part of the road not leased to plaintiff. Plaintiff never
operated that portion of the road so demised, and after its abandonment for
railroad purposes those who owned the lands before they were taken by the
A. N. Co. resumed possession, restored the fences, and used them for farming
purposes. In 1877, defendant located its road over, and proceeded to construct
the same upon a portion of said lands. In an action to restrain the prosecution
of the work, held, that the lease to plaintiff was not authorized, and so was in-
valid; that it was not a contract contemplated by the act of 1839 (chap. 218,
Laws of 1839), empowering railroad corporations to contract with each other
"for the use of their respective roads,” as it was not a contract for "use" within
the meaning of that act. Id.

8. Also held, that in any view plaintiff was not entitled to the interference of
a court of equity; that if any of plaintiff's rights have been infringed, they are
legal rights, and as the injury was not shown to be irreparable, it should resort
to an action at law; also that the spirit and policy of the provision of the Gen-
eral Railroad Act (§ 47, chap. 140, Laws of 1850), requiring railroads to com-
plete and put in operation their roads within five years after their articles of
association are filed, applied to the case, and a court of equity could not coun-
tenance a substantial evasion of the statute. Id.

4. An injunction will not be granted when it will operate inequitably or con-
trary to the real justice of the case; equity interferes in this manner to prevent
irreparable mischief or to suppress a multiplicity of suits and vexatious litiga-
tions.

Id.

LEASE-Continued.

5. The A. and V. R. R. Co. amended its articles of association in 1870, the ef-
fect of which if valid was to discontinue that portion of its line embraced in
plaintiff's lease. Held, That the proceedings were not warranted by the act of
1854 (§ 13, chap. 282, Laws of 1854), as the location of the line or the points of
termination were not the same as either that of the R. and S. Co., or of the
plaintiff, and as there was no agreement for the maintenance of the road, as is
contemplated by the act; but held that plaintiff was not in a position to avail
itself of this objection; as by a stipulation in the lease the right was reserved to
the A. and V. Co. to terminate its line where it has undertaken to do so, and the
plaintiff could not question its power. Id.

6. Under section 1920 of the Iowa Code, which provides that every disposition
of property is void which suspends the absolute power of controlling the same
for a longer period than during the lives of persons then in being, and for 21
years thereafter, the lease of a railroad for the term of 999 years, with a rent re-
served of 30 per centum on the gross earnings of the road, is not prohibited.
Todhunter v. Des Moines, etc., R. R. Co. 67.

7. A contract between two railroad companies, whereby one is to take charge
of the road of the other, with all its equipments, and operate the same as a con-
tinuous line with its own line, and exercise all the rights and privileges of the
other under its franchise, for a consideration named, does not change the owner-
ship of any of the property of the latter company, and the rolling-stock of such
company is liable to distraint for taxes assessed upon its capital stock. Parting
with the possession and use of a thing does not always imply a parting with the
absolute ownership. Archer v. Terre Haute, etc., R. R. Co. 249.

8. Without enabling legislation a railroad company possesses no power to lease
its road to a foreign corporation, and surrender its road and franchises into its
control. Id.

9. Under an amendment to a railroad charter, providing that the company
shall have power to consolidate and connect its road with any other continu-
ous line of railroad, either in this State or in the State of Indiana, upon such
terms as may be agreed upon between the companies uniting or cornecting,
and for that purpose giving full power to the company to make and execute
such contracts with any other company as will secure the object of such con-
solidation or connection, the domestic corporation can only do one of two things:
either consolidate its road with another railroad in this or the State of Indiana,
or make an agreement for connection with such road, so as to secure a continu-
ous line. Under such law it has no power to lease its road to a foreign railroad
company. Id.

10. A contract between a railroad company of Illinois and a railroad company
of Indiana provided that upon the completion of the two roads to the State
line, so as to connect, the Indiana company should take charge of and operate
the road in this State, with its equipments, for 999 years, for which it was to be
allowed sixty-five per cent of the gross receipts from all traffic moved on the
line, or business done thereon, as a consideration for working and maintenance
expenses, the remaining thirty-five per cent to be appropriated-first, to the pay-
ment of interest on the first and second mortgage bonds of the Illinois company,
according to their priority; and second, all the surplus of said thirty-five per
cent to be paid over to the Illinois company semi-annually, to be disposed of
by it for the benefit of its stockholders; also, that if the thirty-five per cent
should not, for any cause, be sufficient in amount to protect the interest on the
mortgage bonds, and the sinking fund therefor, as they matured, together with
the payment of the taxes, and proper costs of maintaining organization, so that
the rights of stockholders might be preserved, then, in that event, the lessees
should advance for the company whatever might be needed, to be accounted
under yearly averages of the lease during the contract: Held, that the agreement
was not a lease of the Illinois road, nor a contract of consolidation, but one of
connection between the two roads, only, leaving the Illinois corporation the
owner of the road, the franchise, and all its rolling-stock, though in the use and
under the control of the Indiana company. Id.

11. A railroad corporation cannot escape the performance of any duty or obli-