l'EDElU.lJ
voL. 51.
the care exercised by him in conducting the same, .and donoti the jury were-misled thereby. Finding no prejudicial orsubstaptial enor in the record submitted to ,thiB:.court, it follows that. t4e judgment Qf the ,QOurt, below is affirmed.
NORTHERN PAC. ,
R.
CO. "', LEWIS i,i',
et ale . ," :'
(C(rmd& OCYUrf,o! Appea18, N(nth C(rcuU. .Tu17 18, 18vs.) L OUT FIRBS-DIlFIINSBI. wlJ,o, without perJll,iSliion. has "ut cord :woQd from pu lands and piled It 1110,ng,fa, ,railr,oad. II, n, d WhO, ts, ,bi actua,l, possessIOn thereof. and engaged In sellinl{ U. , benefit" may Its full value, If negligently destroyed by fire from a locomotive ; for the railro!Jod colDp\\nycannot justify Its negligence by showing that the plaintlflwas a ti'espwer, or qnea'tionnia title without. connecting l\11elt ',,'
2.
a
,Evilletllle of, other l1ttlll;at other pointll on the road, and at other times, both befOl'e'aJidafter the destruction oUlle wOOd, though set by other locomotives was as tending wj,\h\lw the possiQilit.Y, and consequent probabUity,thau 10¢Cjmotive the 1lr:e; \Io)lll' to sbow a neg1iltOnt habit of tbe ofticera and agents of the railroad company., . r, ' lU:M.... AS To9QntlIlT1BLBa O+'f!l'IU,OL ': ," , .As' Cpmp. St. Mont. p.6aO, 17111, makes it tl1-e dutyoh rallrqadcompauy to keep itstraek'.bd'rigbt of way.lIotbe distaDce of 100 feet on eachside;fr'ee from dead r.ras&, wlleds, and mawrial. and declares a fallure to do so prima facle eVIdence of negliltOuce on its part, eVidence that tbe right of way and track, at pOintS otber tban that ,at which the fire was aet out by its lOCOmotive, but in the were incumbered by dead graM and other ClOlDbustlble material, is admissibie., . , It was:tllcumbent upon ,the ,railroad company to prove, by a preponderance of ev· i4ell,ce,that .plaintifl was.gullty of contributory ure to clear the brush apd other combustible materi"l out of an open draw, through wbich,theftre was oOlDmunioated to tbewood. did of proof, for plaintiff Was Dot bound to olear the ground .round hia woodpile. CAtTSIl. , ';
AS TO
FmB", ",,' ,
'" .·
4. S.um":"tiONTlUBUTOBY NEGtIGBNCIl-:BtmDEl'I OJ' PROOJ'. ·
.
5.
B....
A simple change in the direction of the wind could not be ooDsillered as disturb. ing tbe,ne/1:ligence of the railroad company and tbe deBtruet.10n of the wood. anel it WII,S in the province of the to instruot the jury tBat it·wu not an intervening ,
In Error to the Circuit Court of the United States for the District of Montana. . Action by George S. Lewis and others against· the Northern Pacific Railroad Company to recover the value of certain corll wood alleged to have been destroyed through defendant's negligence. Verdict andjudgment for plaintiffs. Defendant brings error. . Affirmed. W. E. Oullen and Geo. F.Shelton, for plliintiff in error. In order to maintairttbtll action, the defendants iiI error were required to show that they were the general owners of the wood destroyed, or that they had a, s\Jecial propelotytherein. It .they had no title'to the wood, and tbe .me belonged toea stranger to the suit, then they bad suffered no injury by the negligence of t4\l ,p,!aiptiff in error. and. could recover no damages in the action. CQo;Jp. St.!4ont. p. 60, § 4,reads as f()llows: "Sec. 4. Every action
NqRTHERN PAC.Rc.co. fl. LEWIS.
659
shallbe prosecuted in the of the real party in interest, except as otherwise provided in this act." The real party in interest was the owner of the wood; and if.defendants in elTor, in making out their case in chief, proved that they were not the owners of the wood and had no interest therein, then their cam!e of action necessarily failed. Railroad Co. v. Jones, 27 Ill. 41; Railway Co. v. Rees, (Ariz.) 28 Pac. Rep. 1134; Railway Co. v. Hecht. 08 Ark. 357; Murphy v. Railroad Co., 55 Iowa. 473, 8 N. W. ,Rep. 320; Railway Co. v. Cullers, (Tex. Sup.) 17 S. W. Hep. 23; Clapp v. Glidden, 39 Me. 448; Lindsay v. RaU1'uad Co., 29 Minn. 411, 13 N. W. Rep. 191; Reed v. Railway Co., (Wis.) 37 N. W. Rep. 225: Hungelj'ord v. Redf07'd, 29 Wis. 345; McNarra v. Railway Co., 41 Wis.ti9: Dermott v. Wallach. 1 Black, 96: Sf·hltlenbe1'g v. HaT1'immt, 21 Wall. 44; (llenn v. (iarrison, 17 N··J. Law, 1; Putnam v. W1Jley, 8 Johns. 337: Winship v. Neale, 10 Gray, 382: Ridgelll v. B(Jnd. 17 Md. 14; Hurd v. Flemin,q, 34 Vt. 169; 7'ufts. 6 Blackf. 136; Howe v. Farra,', 44 Me. 2:,3: Johnson. v. Neale, 6 Allen. 229; Stanley v. Neale, 98 Mass, 343; La. 220; Goodman v. Kennedy. 10 Neb. 270, 4 N. W. Hep. 987;.Reinheimer v. Hemin.qway, 35 Par St. 432; Ribble V. Law"ence, 51 Mich. 569. 17 N. W. Hep. tiD. The denial of title in the answer made the ownership of the wood a mate· rial issne in the case, and put the defendants in errol' upon proof of their title. Dermott v. Wallach, 1 BI,Ick, 96; Schulenberg V. Harriman, 21 Wall. 44; Woodworth v. Knowlton. 22 Cal. HiS; v. Shaj'ter, 32 Cal. 177; B,"uck v. 1'ucker, 42 Cal. 346; Bliss. Code PI. 327.328; AlJlJ. TI'. Ev. p. 627; 2 Boolle, Code Pl. p. 91>; Davis v. Hoppock, 6 Duer, 254: V. Little, 10 Mich. 4a3. The defendants in el"1'''f invoke the ,prinC'iple that such possl<ssion of the property as they had would be sullicient to entitle them to maintain the action against a wrongtloer, or against one who could show no bett...r eyi.lence of titlll; but this principle is not available to the d..fendants in error. for the reason that, to give a right of action founded on mere possession. that pas. session musl he a rightl ul one. On.. wrongdoer can have no right agalUst another. 7'urley v. Tucker, 6 Mo. 583; Ha1'dman v. Willcock, 9 Bing. :382: Stephenson v. Little, 10 Mich. 4:)4: Win,Yhip v. Neale, 10 Gray, 3d2; Ridgely V. Bond, 17 Md. 14; Hurdv. lJ'lemi1tg. 34 Vt. 169: Bume v. I'll/ts, 6 Bla,kf. 136; Howe v. Farrar, 44 Me. 233; Muggridge Y. Eveleth. 9 Mete. (Mass.) 233; Buckley v. G1'O,YS, 3 Best & S. 566; Merry v. Green. 7 Mees. & W. 623; Ransom v. !State, 22 Conn. 153: Pntlt/lm v. Wyley, 8 .Jollns. il37. As the defl'ndants in error did 1I0t own the land upon whil-h the wood was piled, they had no consLructive title to it. Murphy V. Baill'oad Cu., 55 Iowa, 473,8 N. W. H,·p. 320. If, therelore. it appears that the woodin quest ion was the property of some one else otllel" than the defendants in error. and that they had no iutere"t therl'in. under the foregoing authorities they had no cause of action against the pla.intiff in error. The wood was cut hy the defendants in error upon the unsurveyed public domain of the DUlled ::;tates, and at the time of its d, struction was pi.ed then'on. The of thedefendant.'l In I'rror showed that they had not complied, or attempt...d to comply. with the rilles and regulations of the secretary ofth.e interior under the act of congress of Junl:: 3. 1878. "Without positive license by statute. or oth..r C'ompetent authority, no person or corporation ciln lawfullycllt or lise the timuer cut upon the pUblic lands. be tht'y mineral lauds orotherw.ise." U.S, v.l;£u1'eka & P. R. Co., 40 ... d. Hep. 422; Sclmlenbel'g v. Ha'Timan. 21 Wa.lI. 44; U. S. v. Cool·· 19 Wall, 591; /Spenoer v. U.S., 10 Ct. 01.259; Cottunv. U. s., 11 How. U. s. v. (lear, 3 How. 120. .
660
J'EDl!:RAL REPORl'Elt,vo1.51.
Whefi the timber Is once severed from the it ceases to be a part the realtYland becomes personal property; but the title to the property is still in the United States, and the United States 'could replevy the lumber or timber 'wherever found; and if it could not be found, and the cutting was knowingly and unlawfully done, couldrecQver the full value of the lumber or timber, with the enhanced value by reason of its manufacture, not only from the original trespasser, but from any third party in whose hands it may have passed.. Woodenwa1'e Co. v. U. S., 106 U. S.432, 1 Sup. Ct. Hep. 398; U, s. v. Scott, 39 Fed. Rep. 901. See, also, Hun.qerford v. Redford. 29 Wis. 345; McNaN'a v. Railway 00., and Murphy v. Railroad 00., supra. The very evidence which shows the possession proves the possession to be tortious, and plaintiffs' prima faCie evidence is rebutted by showing absolute property In another. Turley v. Tucker, 6 Mo. 583; Stephenson v. Little, 10 Mich. 434; U. S. v. Heilner, 26 Fed. Rep, 80; Winship v. Neale. 10 Gray, 382; Lindsay v. Railroad 00., supra; Nesbitt v. Lumber Co., 21 Minn. 491; U. S. v. Ball, 81 Fed. Rep.667; U. S. v. Lane,l9Fed. Rep. 910; U. S. v. Williams,·18 Fed. Rep. 475; Timber Oases, 11 Fed. Rep.8l; Bly v. U. S.,4 Dill. 464. The defendants in error, having admitted that they cut the wood in controversy upon the public unsurveyed lands of the United States, and that they had not compiled with the laws of theUnited States relative thereto, and had violated the ·rules and regulations prescribed by the secretary of the interior, under the act of congress of June 3, 1878, are compelled to trace their title through their own oriminal·acts. Under the act of congress, a violation of the rules and regulations of the secretary of the interior became a misdemeanor punishable by finealld imprisonment. Their violation of the rules and regulations of the secretary of the interior in force at'that time rendered them liable to a prosecution for this offense. U. S. v. Williams, supra. They were' therefore obligt1d to trace their title to the property in question through their own criminal acts. In the case of The Arl'ogante Barcelones, 7 Wheat. 496, the court, in ing to grant relief to the owner of a vessel which had been captured for a Violation of the neutrality laws of the United States, condemned, sold, and eventually purchased by the wrongdoer, said: "Nor will courts of justice ever yield the loeus standi in judicio to the suitor who is compelled to trace his title through his own criminal acts." This principle seems to be founded in justice, for the reason that courts would be reluctant to encourage wrongdoers in the violation of the law by extending to them the right to enforce their claims to property which they had obtained by their own criminal acts. In the case of Dos Hm'manos, 2 Wheat. 70, the principle was laid down that, if a party attempts to impose upon the courts by knowingly or fraudu. hmtly claiming as his own property belonging to others, he will not he entitled to restitution of that portion which be may ultimately establish as his own. The courts of the United States bave repeatedly refused to enforce oontracts founded on the violation of the law, and have held that the property acquired in violation of the law conveys lio title. Duncanson v. McLure, 4 Dall, 308; U. S. v. Lapene, 17 Wall. 601; Outner v. U.S., Id, 517; Montgomery,v. U. S., 15 Wall. 395; Desma1'e v. U. S., 93 U. S. 605; Ooppell v. Hall, 7 Wall. 548.
of
Wm. Wallace, Jr., and TkOB. O. Bach, for defendants in error. This action was one of treBpHss,-"-not only such in fact, but admittedly so regarded by deftmdant in the court below. It is purely and simply an action for injury to the possession,·and therefore proof of property, either general or special, in addition to proof of possession, is utterly idle. While in actions
NORTHERN PAC. R. CO.V. LEW1S.
661
of replevin and ejectment. and sometimes in trover, the rule is different, it is b"cause right is involved. and plaintiff in them must recover on the strength of his own title. Lam/Jel't v. Strooth81', Wi lies. 221; G'raham v. Peat, 1 East, 244; Je.tfries v. Railt'oad Co., 34 Eng. Law & Eg. 122; 2 Greenl. Ev. §§ 613, 618. Also note 2: "Possession alone is good as against one who lias neither title nor possession." Sweetland v. Stetson, 115 Mass. 49. While in an action of trespass, if plaintiff have not actual possession he may prove title, the object of so proving title is to establish possession constructively from title; while in trover and replevin the object of proving possession is to make a prima facie showing of right ortitle. 2 Greenl. Ev. 614, 636; Abb. Tr. Ev. p. 629; Kissam v. Roberts,6 Bosw. 163. "But in respect to a proper action of trespass de bonis asportatis the authorities are consistent and overwhelming that possession is a sufficient title to the plaintiff in an action of trespass vi et armis, and defendant in such an action cannot set up property in a stranger. * * * If it were held that in an llction of trover for the wrongful conversion of goods the defendant might show property in a third person, it would by no means follow that such a de_ is admissible in trespass for a wrongful.taking." To the same effect are Hoyt v. Gelston, 13 .Johns. 151; Cook v. Howat'd, Id. 276, 284; Aikinv. Buck,l Wend. 466, 469; Demick v. Chapman, 11 Johns. 132; Squire v. Hollenbeck, 9 Pick. 551; Hanmer v. Wilsey, 17 Wend. 91; Pat'kel'V. Hotchkiss, 25 Conn. 321; Todd v. Jackson, 26 N. J. Law, 525; Ashmore v. Hal'dy, 7 Car. & P. 501; Whittin,qton v. Boxall, 5 Q. B. 139; Cary v. Holt. 2 Strange, 1238; Wustland v. Potterfield, 9 W.Va. 438; Cmig.v. G'ilbreth, 47 Me. 417; G'ilson v. Wood, 20 Ill. 38; G'ardlner v. Thibodeau, 14 La. Ann. 732; Boston v. Neat, 12 Mo. 125; Cl'awford v. Bynum, 7 Yerg. 381; Fullet' v. Bean, 30 N. H. 181: Golden G'ate M. & M. Co. v. Joshua Hendy Mach. Works, 82 Cal. 184. 23 Pac. Rep. 45; Crinel' v. Pike, 2 Head. 398; Tarry v. Brown, 34 Ala. 159; Kemp v. Seely, 47 Wis. 688, 3 N. W. Rep. 830. In Boston v. Neat, 12 Mo. 125, NAPTON, J., says: "There was no question of title in the case, nor is title necessary to maintain trespass against a stranger to the title." We refer particularly to the latter case, because the opinion is written by the same judge as in the case of TU1'ley v. Tucker, 6 Mo. 583, (trover,) cited by opposing counsel. And we have enforced this distinction thus vigoronsly because opposing counsel have cited in their brief cases, indiscriminately, of trover, replevin, and ejectment, all utterly inapplicable to this case, and many of them, while enforcing a contrary rule, because of the form of action before them, expreosly recognizing the distinction above made. And even as to the action of trover, Mr. Greenleaf says:' "But a lower degree of interest will sometimes suffice against a stranger, for a mere wrongdoer is not permitted to question the title of a person in the actual possession and custody of the goods whose possession he has wrongfully invaded." Section 637,p. 566. See, also, to same effect, as to action of trover, Ward v. Wood Co., 13 Nev. 44; Je.tfl·les v. RaUl'oad Co., 34 Eng. Law & Eg. 122; Bartlett v. Hoyt, 29 N. H. 319; Burke v. Savage, 13 Allen, 408; Shaw v. Kaler, 106 Mass. 448; First Parish in Shrewsbut,y v. Smith. 14 Pick. 297, 302; Sutton v. Buck, 2 Taunt. 302; Duncan v·. Spear, 11 Wend. 54, 57; Winchel' v. SMewsbury, 2 Scam. 283; Knapp v. Winchester, 11 Vt. 354; Harkel' v. Dement, 9 Gil, 12; Wilson v. lIinsley, 13 Md. 64,73. The two cases from the United :::;tates supreme court cited on this contention, by opposing counsel, were cases of replevin; and in the latter the defendant connected himself with tbe true title,-utterly inapplicable, as we have .shown, to the.case.at.bar. Indeed, the second case.(Schulenbe1'g v. Ha1'riman,) went up on a stipulation of facts, in effect, that "plaintiffs were ill the quiet
662
FEDERAL REPORTER,
vol.
andpeliCeablepossesslon of the logs, and ,that such possession was conclusive evidence of title unless the defendant Clonnected with the state." 21 Wall. 59. The next-contention is that the pleadings were so framed as to put us on proof of title. The complaint alll'ges the destruction of wood "belonginK to plaintiffs." Defendant below not only denied that avermt'nt. but added a socalled denial that we OWlll'd the same. The cases cited by him are utterly in· applicable to-this contention, they being all cases of ejl'ctment, replevin. or trOVl'f,' where right and title are necpssarily involved, save one, in which. however, the defendant justified by connecting with the ownl'r. Mr. Abbott has already been quotpd as saying that an avermpnt of title in this action would be satisfied by proof of posseSSion alone, and that the issue, if joined, would be immaterial. Where plaintiff alleged ownership, and could only prove possession good as against defendant. held sutlkent. Gilson v. Wood. 20 Ill. 38; Ot-awf"t'd v. Bynum, 7YerK.381; Outcalt v. IJut·ling. 25 N. J. Law. 445,447; Oriner v. Pike. 2 Ht'ad. 398; Kissam v. Robert.y, 6 Bosw.I54. lti1. and cases cited ; Put· nam v.LewiN, 133 Mass. 264, 26l:1; Boston v. Neat, SUp,'aj Wincher v. Shrew.9bury., mpraj Reader v. Moody, 3 Jones, (N. C.) 372;.Parker v. Hotch· kiss, 25 Conn. 321. Even had the action bl'enof a nat,llre to rl'quire proof of title, defl'ndant should lIav!' affirmathely plead I'd title in a third person. KisNam v. Roberts, supra, and CRse cited; Ashmore v. Hard.If, 7 Car. & P. 501; Whittington v. BCX1JaU, 5Q. B. 139; Brlmme'v. Adol. & E. 624. The proposition that, to give a r.ght of action upon bare possession, the possession must: be rightful, is true when applil'd to those actions where title must be shown and proof of possession is admissible as primafaeie ev,dence of title, but is utterly false as applied to till' present actIOn. '.fhe lanl!uage of KENYON, C. J:. in case of ttl'SpaS8 to rl'alty, is that" any possession is a legal possession against a wrongdoer." 1 East. 244. In a casl' of trover for wood cut on the pUhlic domain, HAWLEY, C. J., says: "We are of the oplniont hat apppllants could nut defeat & recovery of t he wood by plaintiff by showing the title to the land to be in the govel'llment of the uniess they In some mannpr connected themsPlves with the government." Ward v. Wood 00.,13 Nev. 44. Mr. Grepnleaf's st<ltement, II mere wrougfulpossession is sufficient to maintain t'respass against a wrongdopr, we have alreally advert!'d to. 2 Greelli. Ev. § 61l:!. See, alsn, BONton v. Neat, 12 Mo. ,126; BartMt v. Hoyt, 29 N. H. 3W; But'ke v. Sava.qe. 13 Allpn,40l:!; Rollins v. Olay.33 Me. 13:!; F11,Ill:1' v. Belin. 30 N. H.181; Oriner v. Pike, 2 Hflad, 098; Wiucher v. Shl'ewsbltry. 2 28:3; Boston v. Neat. 12 Mo. 127; Remler v. ,Moody. 3 Jones, (N. C.) 372; (iolrlm Gate, M. & M. 00. v. Hend.1J Mach. Works, !:!2 Cal. 184. 23 Pac. ]{l'p.45. In Dos Hel'manos;2 Whpllt. 76. (cited by llefen,lant in its brief,) it h said: "It !tas belln sa·id that there is nu evillpnce upon the i'coord that the captain was duly commissioned. Hudthat further proof ought to lie rl'quirl'd on this point. Tldl!. howevpl', is a qUf'stion which claimant haa no right to litigate. He has no legal standing before the cOiJrt to assert the rights of the United Slates." Of ca'!es cited by plaintiff'in error, (itl! brief, p. 33.) six in volve no wrongful possession; two are In trovt'r; one false impri"uulnent and money had and rt'cl'lveJ; while the remaining cast' (Ransom v'.l:Jtate. 22 Conn. 153) (page 159:) " And thprefore tres· isempbaticaJIy oltr way, the court pass may be maintained by..theowller a.!alnst the taker, although such possession of the latter is good as'.between 'him allll any otllPr person excepting the owner. as it is in ev.ery where pOllses;sion of goods is olJtained tor.
NORTHERN' PAC. R.
CO. V.
LEWIS.
663
Before McKENNA and GILBERT, Circuit Judges, and DEADY, District Judge. GILBERT, Circuit Judge. This case comes on a writ of error to the circuit court of the United States for the district of Montana. The case was tried before a jury, and a rendered against the railroad company for the sum of $21,487.83. The complaint alleged in substance that on or about August 5, 1890, while the railroad company was using and operating a railroad in Jefferson county, Mont., it failed to keep its right of way and railroad track free from dead grass, weeds, brush, and other combustible material, and used locomotives which threw a large amount of sparks, which fell upon the track and right of way. thereby setting fire to said dead grass, etc., which fire spread and destroyed 9,400 cords of wood belonging to said George S. Lewis et al. The railroad company answered, denying the allegations of and denied that it caused the fire or destroyed any wood belonging to the defendants in error. It further denied that said George S. Lewis et al. were owners of the cord wood mentioned in the complaint, or that they had suffered any damage by any acts of the railroad company; and affirmatively that the loss, if any, occurred through the negligence or carelessness of said defendants in error. There are many assignments of error, some of which are repetitions of substantially the same assignment. The more important of these, and those relied upon upon the argument, will be considered.in the order in which they were presented. It is claimed that the court erred in refusing to instruct the jury that the title or ownership of the wood destroyed was directly in issue, and that, in order to maintain the action, the plaintiffs must show that they were the owners of the wood, or that they had a special property therein. It appeared that the wood was cut upon the public lands of the United States, without authority or permission from the government. At the time it was destroyed it was piled upon the public lands near the company's railroad track. The defendants in error were hauling wood to the pile., and sbipping wood to market by the company's road, at and prior to the time of the tire. The pile was in charge of a foreman. whose duty it was to rake and clear the ground around it for protection against fire. The court below instructed the jury that, as against defendant, the plaintiffs were the owners of said wood, although the same was cut frem lands belonging to the United States. After a carelul consideration of the numerous authorities ciled, we are of the opinion that there was no error in giving this instruction, or in refusing to charge as requested by the plaintiffin error. This case comes within the general rule governing the action of trespass for injury to personal property. In such a case possession is pri'lnfl, facie evidence of right, and no stranger may disturb that possession without showing some authority or right from the true owner. The. rule applies to the negligent destruction of property, as well as to its wrongful taking and asportation. The fact that the land on which the wood was cut was government land, and the
664
FEDERAL REPORTER;
vol. 51.
when cut and sawed, still belonged to the United states, and the fact that the defendants in error may have been trespassers, can make no difference with the application of the rule. In such a case the defend antis not allowed tojustify his own by showing the plaintiff's wrong; and he is not allowed to question the title of plaintiff in possession;unless he connects himself with the true title. Some cases are cited by plaintiff in error to sustain its contention that recovery cannot be had in favor of a trespasser upon the public lands. It will be observed that the decisions in those cases are expressly based upon the fact that the parties who brought the actions had not-the actual possession, and, being trespassers under no claim of right, .couId not have the constructive possession of the property taken or destroyed. The case of TurUYy v. Tucker, 6 Mo. 583, was a case where logs had been cut and left upon the government land by the plaintiff. Subsequently the defendant appropriated the to his own use. The plaintiff's right to recover was denied, not because he had wrongfully cut the logs upon the public lands. but for the reason that he had no actual possession of the logs, and claimed no right to the land upon which tbeywerecut. In the case of Murphy v. Raili'oad Co., 55 Iowa, 473,8:N;' W. Rep. 320, the plaintiff had cut hay and stacked it upon the uninclosed prairie. The hay was destroyed by fire through the defendant's negligence. Plaintiff was not in actual possession of the hay. and made no claim to any right in the land. It was held he could not recover.. In the case of Railway .Co. v. Hecht,38 Ark. 357, it was said by the court that, in an action for the destruction of property, "an allegation of ownership is material;" but that statement, if it amounts to a denial of the doctrine that possession is prima facie evidence of ownership,must,be regarded as obiter, for the pleadings in the case expressly admitted the. plaintiff's ownership. The case before the court is distinguishable from these from the fact that the defendants in error were in the actual possession of the wood. The destruction was total. The amount to be recovered was not the value of the possession, or anything less than the fun value of the property destroyed. Kennedy v. Whitwell, 4 Pick. 466.; Ingersoll v. Van Bokkelin, 7 Cow. 670-681; White v. Webb, 15 Conn. 305. It is assigned as error that the court permitted evidence of other fires set at other points on the l'oadand at other times, and by other engines, and instructed thejury to take into consideration the fires so set in determining the question of negligence. The complaint did not designate the particular engines which were claimed to have caused fire. The testimony, however, tended to show that the fire originated from one of two certain locomotives, and that these and other locomotives had set other fires both before and after the injury complained of. This evidence wasclel'lXly admissible, under the authority of the decision in the case of Railroad Co. v. Richardsoo, 91 U. S. 454, as "tending to prove the possibility, and consequent probability, that some locomotives caused the fire, and as tending to show a negligent habit of the officers. and agents of the railroad company."
NORTHERN PAC. R. CO.
v.
665
It is claimed that the court erred in permitting the defendants in error to prove that the right of way and the track at other points than that where the fire occurred were incumbered by dead grass and other combustible material. Compo St. Mont. p. 830, reads as follows:
"Sec. 719. It shall be the duty of all railroad or railroad companies operating any railroad within this territory to keep their railroad track, and either side thereof, for a distance on each side of the track or roadbed, so far as it passes through any portion of the territory of Montana, free from dead grass, weeds, or other dangerous or combustible material; and any railroad company or corporation so failing to keep their railroad track free and clear, as above specified, and each side thereof, shall be liable for any damages which may occur from fire emanating from operating the railroad; and a neKlect to comply with the provisions of this chapter in keeping clear any railroad track, and either side, for a distance equal to the space of ground covered by the grant of the right of way of the railroad company, provided that the same does not exceed one hundred feet on each side of the roadbed, shall be prima facie evidence of negligence on the part of any rail· l'oad corporation so operating any railroad within the territory of Montana." Witnesses were allowed to testify as to the condition of the track "all along up through there, at points opposite the camp." We do not think the inquiry took too wide a range. The investigation was sufficiently confined to the immediate neighborhood of the fire, and it is not perceived that the plaintiff in error could have been injured by it. There is another view under which this evidence was clearly proper. The fire started at bridge 71, half a mile froin the wood pile. In the intervening space a second fire was started by the same train. The foreman who was fighting the first fire abandoned it for a time to extinguish the other. In the mean time the first fire increased and spread. It was proper to consider the condition of the track through the entire distance, as affecting the question of contributory negligence of defendants in error in their action in opposing the spread of the fires. The instruction of the court upon the statute quoted above is assigned as error. The court said: "It was made hereby the duty of the defendant to keep the railroad track and right of way, to the distance of .100 feet on each side of such track, free from dead grass, weeds, and other dangerous and combustible material, and the failure to do so was prima facie evidence of negligence on part of . the railroad company."
It is claimed that this instruction leaves out of consideration the question whether the combustible material left in the right of way was the means of communicating the fire. This instruction, so far as it goes, is a synopsis of the statute, and consequently a correct exposition of the law. The record discloses that the only exception taken to it was on the ground that there was no evidence to show the width of the right of way to have been 100 feet on each side of the center of the track, and that the width was a question of fact for the jury. If there were any error in the failure to charge further, as now claimed, it was waived by the plaintiff in error. Mutual Life Ce. v. Snyder, 93 U. S. 396.
666 ,. i l;t; ii'l
I I I'
i,t,\levolved tlPBP the plaintiffs were in error admits the correctness of this rule in ordinary cases, but contends that wh'etjevefthe plaintilf,ih making hiS case, shall have disclosed evidence of butden'of:proof is shifted, and ,upqn him t!) show tha,t ;4f8 lleg1igence ':Was :oot. of a character right 0f,acti9n. Theeviq'eI:\ce which iEl<llaimed proved the plai:ritiffslcontributl>ry: negligence ·consisted in the fact that, upon the furtbeHlide of the wood the timber, the plaintifl's'had failed to clear the brush ahd combustible material out of the timber, an qpen4raw;,throl,ghWhich to the wood. W e,.camiof ,see t/lis omission any evidence ofcontributory nElgligence. The law did n.otimpose upon the defenda.nts in E1rror the duty of clearing the ground ,around their wood Arl ii'matter of precatltion,they had elearedaway inflammable all p,oints where approach of fire,and,there ''i>:as nothing in their failure to clear the 'draw which would shift the, ,'Durden of proof. Coasting 00. v. Tolson, 139 U. S. 557,11 Sup. Ct.RE}p. 653.' ·., ." ... ,. ..' The or,the court upon the sUbject ofilitervening cause is assigned as error. The evidence was at the ',beginning of the fire ,from the sOlIth, and s13rvedto blow the fire away from the the it shifted to the north, a was usual at road; that tillle, of the,Year. There is no, evidence of a. Change in the intensityo,f charged the jury as follows:" It is claimed the of the wind Bl:wuld be classed as an intervening state to you t,hat I think' it not be so considered." It IS contended that the Juryshould. havebeeh allowed to determine whether the changein the Willd was an il1terVeningcause. No authority hasheeh cited which supports this ct;ll1tention. It is only the occurrence of a heavy and extraordinary wind that 'has in certain cases been held:10 bean intervening caUse. A simple, llnd not unusual, change:i* 'the':direction of 'the wind be said to disturb the un· ?,rqkenconnection between the wrori'gful act and the, injury, and hence is not an intervening cause. 1'he jury were propetly s() instructed. The judgment is affirmed. '
errqrin.the The..
,tpe, subject
· CAPWELL'll.' SIPE.
667
CAPWELL'll. SU'E
et ai.
(Ofn"ouU Oourt, N. D. OM.o, E. D. May, 1899.) In an action in a federal court in one state on a judgment of a supreme court of another iltate, it is no defense that, before the action in tbe state 'court was commenced, ,a suit on the. cause of action wa!l pending in !lucb federal court, which !luitwal3 di!lmissedsubsequent to the entry of judgment in the state court. 2. WRITS-I'ERSONAL ON NOSBESIDENT-JUDGMENT-COLLATERAL ATTACK. Where a nonresident 'was personally served with summons in a state court, while within the jurisdiction of !Inch court,!lolely for the pUrpOIlEl of, trying another !luit pending in said court as party defendant, and the court beld the service good, and gave judgment thereon, such !lervice oannot be collaterally attacked in a subsequent Buit on the jUdgment in a federal court. L RES JUDICATA-DISMISSAL BUIT.
At Law. Action by Roger F. Capwell against John F. Sipe and others. On demurrer to answer. Demurrer sustained. Hutchins & Campbell, for plaintiff. W. C. Ony, for defendants. Before TAFT, Circuit Judge, and RICKS, District Judge. TAFT, Circuit .Judge. The questions here to be decided arise on a demurrer to the answer of the defendants. Plaintiff's cause of action iil founded on a judgment rendered by the supreme court of the county of Providence, in the state of Rhode Island, in favor of the plaintiff against the defendants. The defenses are two. One is that, before the action in Rhode Island was begun, a suit on the same cause of action was begun in this court, and that the suit here was pending when judgment was entered in Rhode Island, and that subsequently the suit here was dismissed. No reason is suggested why this constitutes any defense in the present action, or in any way affects the validity of the Rhode Island jutlgment. The demurrer to this defense must be sustained. The other and principal defense set up in the answer is that the defendants were personally served with summons in the Rhode Island suit while they were within the jurisdiction of the Rhode Island court, and had gone there solely for the purpose of attending, as parties defendant, the trial of another suit pending in the same court. They plE-aded this fact in abatement, and contended that the purpose for which they came exempted them from service. The supreme court of Rhode Island, however, overruled the plea, on the ground that such an exemption existed only in case of witnesses, but did not exist in case of the parties to the suit, whether they were witnesses or not. It is now contended that the judgment against defendants, based on such a service, is void for want of jurisdiction in the court over the defendants. We do not think so. The defendants were within the territorial jurisdiction of the court rendering the judgment, and -they were personally served with the process. They relied on an exemption allowed by many courts on the ground of public policy. In this case, as the suit on which the defendants were in attendance was pending in the same court which