The Portland daily press., 1899-06-02

Cumberland, s.
Mellen 4. -Dotsn ct ais, In Equity We.
Arthur n. Richardson ct al. Re
script.
mo statenentTot labor and matsriall
furnished for q building mead be filed In
the town clerk's office when they ars fur
nisned under contract with the owner
OF the building.
2.-The justice hearing the.oase having
found the facts a. to the amount Of labor
and materials furnished and actually
used In the building, such finding must
has not been done in this case.
The decree below Diminishing the bill IL
reversed.
The bill IL sustained and new decree
is to bs passed that the plaintiff have
judgment against Richardson. and lien
judR msnt against the land and building
for six hundred and twenty three dollars
thereon from Japhary first, A. D.. 1898,
TO the date Of Ming the new DEGREES and
for costs.
Piscataquis, IS.
Boston Excelsior Company ". bangor
and Aroostook Hailroad company.
Rescript BY Whitehouse, ]. 1t IL pro-
vided by the statutes Of this state that
when 2 bnilding or other property is
injured by fire communicated by n loco
motive engine, the corporation using IL ID
responsible for such injury, and ID has an
insurable interest In the property along
the route. for which IL Is responsible, and
may procure insurance thereon. But
such corporation shall be entitled to the
benefit OF any insurance upon such prop
erty effected By the owner thereof. less the
Premium and expense of recovery"
In an action ON the case to recover
damages for the destruction Of the plain
till q property by fire communicated by
locomotive engine operated rand owned
by the defendant the plaintid claims to
recover, first, by virtue of this statute,
and secondly, at common law for the
negligent condition and management of
the d. 1dant's locomotive engine.
A <,ortion Of the property destroyed
cons isted OF split poplar wood, . part Of
which, estimated by the Jury in q special
finding at two hundred cords, was piled
upon the Defendants land, and the bal
apce upon the adjoining land of the
plaintiff.
The railroad company commended that
the plaintiff was . trespasser in thus
piling its poplar on the defendants land
and permitting IL to remain there after
the defendant had requested Its removal;
and also claimed that inasmuoh as the
IRE was first communicated to the portion
Of the wood SO piled ON defendants land
and spread therefor destroying the other
for any of the property thus destroyed.
The jury returned special finding. upon
the issue. that the poplar on the defend
ants land, at the time of the fire, was
there under the license or consent OF the
defendant; and also returned general
verdict for the plaintiff In the sum of
s4966. ~, exclusive Of insurance effected
amount Of $500.
Upon careful examination Of all the
evidence relating to this question Ii ap.
pears that from August, 1898, to May,
1896 the time of the fire, no intimation
was given by the station or other agent
of the defendant. that the plaintiffs FORE
man was expected to remove the wood
Under these circumstances and upon this
evidence 1t is considered by the court that
the PLAINTIFFS foreman was justified In
assuming that the defendant &C Iuiesced
In such continued occupation of the land !;
and that the special finding of the jury
on this point Is warranted by the evil
deDce. sss
The testimony of the land surveyor and
engineer called by the plaintiff, with
other corroborating evidence, was suifi-
cient to authorizs the jury to find that
no part of the wood WAS piled within the
defendants roadway. Therefore, the Ian
on which the wood was piled being occu-
pied by the plaintiff undsr the license of
t4c udlcuudubs sum OC0uUtllUu MAS tAW-
full and the plaintiffs rig hts and the de-
fendnnt's liability with respect to injury
by fire from locomotive, are the same
as they would be IL the plaintiff was the
owner of the land.
Held; That, under these circumstances,
even when the action Is founded on the
common law liability OF the defendant for
trains, the great weight of authority,
both American and English, supports
the proposition that land owner is not
justly chargeable with contributory neg
ligence for, such reasonable and legiti-
mate use OF bis own land.
Held: That after careful examination
Of all tine facts in the case having any
genoe on the part of the plaintiff, that II
the defendant was entitled to the instruc-
tic that the plaintiff cannot recover
In axis action because IL was guilty OF
contributory negligence in depositing its
wvod In such close proximity to the rail-
road track with full knowledge OF the
danger from IRE to which it would be
evidence to authorize the finding of the
juryf that the plaintiff was not guilty of
negligence, or II SO, that it did not con.
tribute as q proximate cause to the loss of
the plaintiffs property.
The fact that the destroy ed property
was located near this line OF the railroad
does NOT deprive the owners Of the protec-
ton OF the statue: certainly IL is was
placed where 1t was under a license from
the defendant; and the doctrine of CON-
tributory negligence is not applicable to
this class OF cases.
Motion and exceptions overruled.
U. S. CIRCUIT COURT.
Before q Judge Webb in the United
States Circuit court Thursday there was
hearing on libels brought against
dredpes Nos. and 2, which was contin.