#### John McDonough, Appellant, *v.*The New York Central and Hudson River Railroad Company, Respondent.

Third Department,

January 8, 1908.

Real property — fire — negligence — proximate cause — liability of railroad company for spread of fire to property not “next-adjacent.’’

A landowner who negligently causes or manages a fire on his own property is liable to his immediate neighbor for the damage caused to him by the spread of the fire to his property, but is not liable for damages occasioned to one whose, property is not immediately adjoining.

The question to he determined is the origin of the fire for which recovery is sought. Was it caused by the fire on the defendant’s land, or by a separate and distinct cause existing between that fire and the property destroyed? Where a fire on a railroad right of way caused by sparks from an engine after being partially extinguished is started a few days later by a high wind, and after burning half a mile of private forest land, crosses a river to timber on the other side from 700 to 1/200 feet distant, a person whose timber and wood located three-quarters of a mile beyond the river is destroyed cannot ■ recover from the railroad company, for the fire upon its right of way was not the proximate cause of the burning of his timber.

It is immaterial whether or not the several lots located between the plaintiff’s property and that of the railroad company he considered as separate premises, for the forest land upon the same side of the river as the railroad property was “next adjacent” to it, while the land upon the other side, of the river was not.

Appeal by the plaintiff, John McDonough, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 4th day of April, 1907, upon the dismissal- of the complaint by direction of the court at the close óf the plaintiff’s^ case upon a trial at the Franklin Trial *39Term, and also from an order bearing date the 1st day of April, 1907, and entered in said clerk’s office denying the plaintiff’s motion for a new trial. x ' .

*Kellas & Genaway [John P. Kellas*of counsel], for the appellant.

*Martin K MeOlary,*for the respondent.

Kellogg, J.:

Defendant’s railroad extends diagonally in a southwesterly direction across township 22, which is divided into about 142 lots, each lot containing about 160 acres. The premises in question are forest lands. In an exceedingly dry time, and on the 23d of April, 1903, shortly after one of the defendant’s engines had passed over its track, fire was discovered on lot 122 and along the right of way adjoining, burning in the dry stumps and underbrush thereon. An effort was immediately made by the defendant and others to extinguish the fire. It spread,-but finally, after two or three days, was supposed to be entirely extinguished. ' Thereafter, on the twenty-eighth day of April, during a high wind from the west, the fire was discovered burning, and it rapidly spread to the Kacquette river,' taking a course substantially parallel to the defendant’s track for a distance of about half or three-quarters of a mile. It was then carried by the wind across the i-iver on the twenty-ninth day of April. From the place where the fire left the west shore of the river to where it struck upon the easterly shore, on the easterly side of the line of fire, was 1,200 feet, and on the westerly side was not less than 700 feet.'' It continued its course easterly for about three-quarters of a mile, and there burned some wood and ties belonging to the plaintiff, situated upon lands of the International Paper Company, the standing timber of which he had purchased. The lands upon which the fire burned," aside from the defendant’s right of way, belonged to the International Paper Company, or were lands in which that company had a half interest. The fire, during its continuance, and up'to the time it burned the plaintiff’s property, passed over or upon part of lots Nos. 122, 121, 128, 130, 138, 89, 87, 86 and 85, upon which last lot we assume-the plaintiff’s loss was suffered.

*40The trial justice granted the nonsuit on the authority of *Hoffman*v. *King*(160 N. Y. 618), holding that-the. defendant’s negligence was not the proximate cause of the plaintiff’s injury, and that the damages were too remote.' The appellant insists that all of the injury was suffered upon the premises next adjoining that upon which the fire originated, and that, therefore, liis case is distinguished from the *Hoffman*case. It is probable that in order to find the defendant liable it inust be assumed that, its negligence consisted in permitting dry stumps and material to remain within its right of way, which, in' a. dry time, was liable to burn and communicate fire- to the adjoining premises. The *H°ffmc,/n*Case applies the rule governing improved or village property to forest lands. Judge Haight, in the' *Hoffman*case, refers to the opinion of Folger, J., in *Webb*v. *R., W. & O. R. R. Co.*(49 N. Y. 420) and cites with approval his statement of the .rule that' the liability of a person extends to liis immediate neighbor only for the damages caused to him by the spread of the fire upon his next adjacent or contiguous property.. In the- *Webb*case Judge Folger says (p. 426): “We have the common-law principle well established and thoroughly recognized, and still existing to this extent: that he who negligently sets or negligently manages a fire in his own property is liable to his immediate neighbor for the damage caused to him by' the spread of the fire onto his neighbor’s next adjacent property. It is a - principle too firmly fixed, and certainly,, in cases like the. present, too reasonable and salutary to be shaken for light considerations:” .

It is not. necessary to discuss whether each lot as platted upon' the. map consists of separate. premises within the meaning -of this discussion, for it is evident that the first six lots west of the Banquette river should, within the rule, be considered as -separate premises from the lots-east'of that river.

Neither is it necessary to consider whether the plaintiff is not a separate owner from the paper company, or whether that part of the lands oWned by the paper company and another did not represent still another ownership, and thus malee one or more neighbors between the plaintiff and the defendant. Too much refinement is' frequently indulged in in these cases by assuming that the liability exists or does not exist on account of the presence or absence of *41certain lot lines or certain different ownerships. The real question is not where are the lot lines or who is the owner of the particular properties, but is the negligent act of the defendant the proximate cause of the plaintiff’s loss ? Is there an intervening cause which is the real cause of the injury? "The safe rule is the one.stated by Folger, J., before mentioned, that an injury to a neighbor’s premises is too remote unless it is upon the next adjacent or contiguous property. In the case of forest lands it may be a little difficult to say that certain trees or parts of a distinct lot is the next adjacent or contiguous premises and other trees and other parts of the same lot are not. But here at least it is safe to say that the premises west of the river are the next adjacent premises, and the premises east of the river are not the next adjacent premises to the property where the'fire originated.

Fire is communicated to A’s house from negligent fire upon railroad company lands, and the burning of A’s house causes the destruction of B’s house adjoining. Within the *Hoffman*case the railroad company is liable to A, but not to B, for the reason tthat the destruction of B’s house was caused by the burning of .A’s house as a cause and not by the railroad company’s original negligent fire. Would the situation be different if just before the fire A had bought B’s house, and would the defendant be liable in that case for the destruction of both houses ? Such a distinction seems to make the title deeds of A and not the progress of the fire the criterion of liability. If a row of independent "houses are burned the liability of the person starting the fire is the same whether one person or many own the houses burned: The question is, in each case, what was the origin of the fire for which recovery is sought? Was it caused by the fire on the defendant’s land or was it caused by a separate and distinct cause existing between the defendant’s negligent, fire and the property destroyed ? '

The case of *Ryan*v. *New York, Central Railroad*(35 N. Y. 210) has been commented upon and explained by later cases but has never been overruled. When rightly understood it is consistent with the established rule in these fire cases. There the defective engine of the defendant permitted sparks to fall upon its woodshed. The sparks from the burning woodshed communicated with the plaintiff’s house 130 feet distant, but it was held the plaintiff *42could not recover as the defendant’s- negligence was not the proximate cause of tiie loss. There the only negligent act of the defendant was permitting sparks to escape from its engine. The construction,1 location and management of the woodshed was without fault. The proximate cause of the destruction of the woodshed was the defective engine; the proximate cause of the destruction of the plaintiff’s house was the burning of the woodshed. An independent cause existed between the negligent act of the defendant and the loss of the plaintiff. If the defendant had' been negligent in permitting sparks to escape from the engine and also negligent in the construction and management of its woodshed, so that the burning of the shed was the result not only of the negligent sparks but also of the continuing negligence of the .defendant with reference to the woodshed, then the burning of the plaintiff’s house would result from the combined negligent acts taking place upon the defendant’s premises.

In the *Webb*case the negligence of the defendant consisted not. only in a defective engine which allowed coals to drop down, but also in the negligent accumulation of dry grass and weeds leading directly from the track to the plaintiff’s property. . It not only negligently started the fire upon its own land,hut negligently communicated it to the fence and carried it upon the plaintiff’s property.

The *Bycm*case, the *Webb*case-and the *Hoffman*case recognize the rule limiting liability to the immediate neighbor for the damages to the neighbor’s next adjoining property. They concede that this rule .is arbitrary but reason that it rests upon sound public policy, as otherwise there would be no safety in owning or caring for property. -

Under all the facts of this case the defendant’s negligence was not the proximate cause of the plaintiff’s loss. The judgment should, therefore, be affirmed, with costs. .

All concurred.

Judgment and order affirmed, with costs.