been subject to arbitrary regulations, and the common law of England was more severe and arbitrary on the subject than any statute. In Rolle's Abridgment (Action on the Case, B, title Fire), it is said: "If my fire, by misfortune, burns the goods of another man, he shall have his action on the case against me. If a fire breaks out suddenly in my house, I not knowing it, and it burns my goods, and also my neighbor's house, he shall have his action on the case against me. if the fire is caused by a servant, or a guest, or any person who entered the house with my consent. But otherwise, if it is caused by a stranger who enters the house against my will."

So

It ought, perhaps, to be stated that this has not been adopted as the common-law rule in the United States. In most states, we presume, there are arbitrary police regulations concerning the transportation or deposit of gunpowder. Would the constitutionality of a statute be questioned that should make one who deposits large quantities of gunpowder or dynamite on his own premises, in dangerous proximity to the property of another, liable for any loss thereby occasioned to the latter, without proof of negligence?

There is no force in the objection that the statute under consideration unjustly selects only railroad corporations to bear the burden of an extraordinary risk. It is confined to them because they alone have the privilege of taking a narrow strip of land from each owner, without his consent, along the route selected for the track, and of traversing the same at all hours of the day and night, and at all seasons, whether wet or dry, with locomotive-engines that scatter fire along the margin of the land not taken, thereby subjecting all combustible property to extraordinary hazard of loss, and that, too, for the sole profit of the corporation. The argument for the defendant is fallacious, in erroneously assuming that the statute denies to the defendant a good defense which, at common law, all others would have under similar circumstances.

In Jones v. Festiniog R'y Co., L. R. 3 Q. B. 733, in a suit against an unchartered railway company, it was proved by the defendants that all reasonable precautions had been taken to prevent the emission of sparks from a locomotive-engine used by them. But it was held, nevertheless, that they were liable, on the ground that the locomotive was a dangerous engine to be brought and used by the defendants even upon their own premises, and that they must bear the consequences

in case of damage to others. Wharton, in his treatise on negligence, section 868, lays down the same doctrine as to the liability of unchartered companies at common law.

How, then, can it transcend the limits of just and valid legislation to attach to chartered railroad companies, for doing the same act, under the same circumstances, the same liability, where the charter, as in this case, is an open one, expressly made subject to all general laws?

In Hooksett v. Concord R. R. Co., 38 N. H. 242, where the construction of a similar statute was under consideration, Eastman, J., in giving the opinion of the court, used this suggestive language: "The extraordinary use of the element of fire, by which the property of individuals situated along the lines of railroads becomes endangered beyond the usual and ordinary hazard to which it is exposed, no doubt caused the legislature to interfere. . . . . By this exposure, an increased risk of loss of property is caused. The risk must be borne by some one; and if the property is insured, a larger premium must be paid. Upon whom shall this risk fall, and this burden rest? Upon the owners of the property, or upon the corporations who make this extraordinary use of the fire?"

The only answer, it seems to us, which a due sense of justice can dictate, is the one given in that case, that the responsibility and burden should rest on the corporations. No other mode of adjusting this risk can be suggested so just towards all parties as this. Before the statute, upon taking land for railroad purposes, it was possible, upon the appraisal, to include something for the increased risk to buildings on the land not taken, confining it, however, to the diminished value of the remaining property caused by the risk: Pierce on Railroads, 215; In re Utica etc. R. R. Co., 56 Barb. 456; Wilmington and Reading R. R. Co. v. Stauffer, 60 Pa. St. 374. But it would seem extremely difficult to make any just appraisal even on this limited basis; and it could have no application to buildings afterwards placed on the land, nor to buildings. which might be destroyed by fire from this source on land more remote from the railroad, no part of which was taken or appraised, nor to any personal property whatever. And it would of course be utterly impracticable to assess beforehand damages for property that might be destroyed in the future.

And here we may suggest that the statute under consideration, though often characterized as arbitrary, is really based on a principle quite similar to that which allows an assessment in

favor of the land-owner, founded on the risk of fire from the same source. In both cases, it is assumed that there is a risk, and that it is justly placed on the corporation. The statute carefully guards the interests of the corporations by giving them an insurable interest in all the property for which they may be made liable, and section fourth provides that no appraisal of damages for land taken or injured by the location or construction of a railroad shall hereafter include any compensation for the increased risk to any building outside of such location, on account of sparks from the locomotive-engines on such railroad.

This last provision suggests that the statute is not quite so equitable in its application to the defendant company, which established its railroad before the statute was enacted, as to corporations afterwards formed. It can of course derive no benefit from this provision, except as to land it may have taken since the enactment of the statute. The record is silent as to when the land in question was taken, or whether or not anything was at the time included or claimed as damages on account of the risk from fire to the property now owned by the plaintiff. No question founded on these facts was made in the court below, and of course is not to be entertained in this court for the purposes of decision. We may, however, remark, as to the general provisions of the statute, that if they are valid as to railroads to be established, they may be equally so as to railroads already in existence. The defendant's charter not only contains an explicit reservation for the legislature to alter, amend, or repeal it, but makes it also in terms subject to all general laws the legislature may thereafter pass. And as to any defense suggested by the assumption that an appraisal of the general risk from fire may have been made to the plaintiff originally, or his grantor, while we reserve a final decision of the question for the case in which it properly arises, we may here suggest that where the original appraisal only gave damages to the extent that the property was diminished in value in consequence of the risk, and the same property is afterwards destroyed, the damages to be recovered under the statute would of course only represent the remaining or diminished value, so that the statute cannot properly be charged with allowing double damages for the same thing.

In other jurisdictions, the original appraisal and the indemnity provided by the statute have not been considered so inconsistent as that both might not exist together: Pierce v.

Worcester and Nashua R. R. Co., 105 Mass. 199; Bangor etc. R. R. Co. v. McComb, 60 Me. 290; Adden v. White Mt. etc. R. R. Co., 55 N. H. 413; 20 Am. Rep. 220; Lyman v. Boston etc. R. R. Co., 4 Cush. 288.

In further confirmation of our reasoning as to the validity of the statute, we make the following citations:

Redfield, in his treatise on the law of railways, in the first edition, page 360, published in 1857, alluding to the statutes similar to the one under consideration, said: "We cannot forbear to add that the interference of the legislatures upon this subject in many of the American states seems to us an indication of the public sense in favor of placing the risk in such cases upon the party in whose power it lies most to prevent such injuries occurring." In Pierce on Railroads, p. 444, it is said: "Statutes have been enacted making the company liable, even in the absence of negligence, for injuries to private property caused by fire communicated by its engines, which, in effect, make it an insurer in case of such injury. These statutes are constitutional, even when applied to pre-existing corporations." In 2 Wood's Railway Law, sec. 331, it is said: "In some states railway companies are made liable, irrespective of the question of negligence, for fires set by their engines, and as a compensation for this extraordinary liability are given an insurable interest in such property; and these statutes have been held constitutional, even in their application to corporations established before the statute was passed, and although damages for the risk of fire were considered when the land was taken." In the well-considered case of Rodemacher v. Milwaukee etc. R. R. Co., 41 Iowa, 297, 20 Am. Rep. 592, the court discussed at length the constitutionality of a provision of the code of that state, that "any corporation operating a railway shall be liable for all damages by fire that is set out or caused by the operating of any such railway," and fully sustained the act, even as applicable to pre-existing railways.

The counsel for the defendant in the case at bar sought to impair the force of the decision by reason of the fact that in Iowa the code had entirely supplanted the common law. The distinction seems to us not well taken. The legislature surely could acquire no additional power by exercising its sovereign will twice,-first in abolishing the common law, and then in enacting the statute. And the objection as to inequality before the law so persistently urged against our statute applies with

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equal force to the provision of the Iowa code, for that applies exclusively to railway corporations the same as our statute.

In Lyman v. Boston etc. R. R. Co., 4 Cush. 290, it was held that a similar statute in Massachusetts was applicable to railroads established before as well as since its passage, and that it extended as well to estates, a part of which is conveyed by the owner, as to those of which a part is taken by authority of law. The constitutionality of the statute was not discussed, but the principles stated as constituting its foundation directly apply. Dewey, J., in delivering the opinion, on page 291 said: "We consider this one of those remedial acts passed for the more effectual protection of property against the hazards to which it has become subject by the introduction of the locomotive-engine. The right to use the parcel of land appropriated to a railroad does not deprive the legislature of the power to enact such regulations, and impose such liabilities for injuries suffered from the mode of using the road, as the occasion and circumstances may reasonably justify." This reasoning clearly makes the legislation in question a legitimate exercise of the police power of the state. See also the comments of Shaw, C. J., in delivering the opinion in Hart v. Western R. R. Corp., 13 Met. 105, 46 Am. Dec. 719; and of Bigelow, C. J., in Ross v. Boston etc. R. R. Co., 6 Allen, 90.

2. The remaining question relates to the construction of the statute. Do the words "other property" embrace fences, growing trees, and herbage, the property injured in this case?

The entire description in the statute is "building or other property," and the defendant invokes the benefit of the principle of interpretation known as noscitur a sociis,—that is, that the particular word "building," being followed by the general words "or other property," the latter only includes subjects ejusdem generis.

This rule has been often recognized and applied, but we think its application to this case would work injustice and tend to defeat in part the object of the statute. The statute is clearly remedial, and ought to be construed liberally to effectuate the intention of the legislature, which was to give the owners of property along the route of the railroad indemnity for the loss of all property that might reasonably be said to be exposed to danger from the source referred to. And besides, the above maxim would be exceedingly difficult of application, unless the words "other property" should be entirely rejected. The hay, grain, farming tools, and live-stock