In the case of Clark v. Foot, (8 John. 421,) it is said by the court that “ it is a lawful act for a person to burn his fallow, and if his neighbor is injured thereby he will have his remedy by action on the case, if there be sufficient ground to impute the act to the negligence or the misconduct of the defendant or his servants.” And the remark is put forth that if a man’s house “ should get on fire and burn his neighbor’s, no action would lie, because it" was lawful for him to keep a fire. The loss in all such cases is damnum absque injuria,”
There is no dispute about the main facts in this case. There was .considerable rain the latter part of June, 1854, but from that time to the 17th of July, when the defendant set fire to some log heaps in his fallow, it had continued dry. Some of the witnesses say it was a very dry time. The place had been burned over the May previous, and there were no bush near. It was low swamp land. The heaps were not very dry, when *621first fired, and did not immediately burn. From the 17th to the 20th of July it continued very hot and dry, though it rained a very little on the morning of the 17th. On the 20th the wind commenced blowing violently, and the fire communicated to Lockwood’s lot, which was a pasture, lying between the plaintiff’s and the defendant’s lots. On the 26th of July the wind blew a gale, and the fire was blown across Lockwood’s lot and extended to the plaintiff’s, and burned his grass, crops, &c., occasioning a loss, which Avas stipulated at $100. The only evidence of any carelessness on the part of the plaintiff is, that the * fire was set in a dry time in July. But this single fact, under the circumstances, does not entitle the plaintiff to recover. It was set on low SAvamp ground that had once been burned over. There Avere no brush near. The stumps Avere Avet and did not burn well, and in fact Avere.not all consumed. It is a well knoAvn fact that fire will not so readily run on ground Avhich has been before burned over, as at first. It was set on a day Avhich looked likely for rain. It did rain in the morning, though not to a great extent.
It appears to me it cannot be contended that the defendant selected an improper time, or that it Avas a careless act in him, to set fire to his own falloAV, in a month usually chosen for such a purpose. He certainly could not be supposed to know that He who in his infinite Avisdom controls the seasons, and holds the winds in his fists, would have suffered the drouth to continue, or have permitted the gale to waft the fires across an-adjoining pasture lot to his neighbor’s land, on the 26th, and thus do him an injury entirely unexpected and unintentional. The plaintiff should have established the negligence or misconduct, by legal evidence. This, I think, he failed to do. (See case before cited, and Livingston v. Adams, 8 Cowen, 175.) The evidence of want of attention on the part of the defendant, if it be conceded that he did nothing to prevent the fire from spreading, does not help the plaintiff’s case. In Clark v. Foot the defendant refused to do any thing, except to prevent the fire from injuring his own premises ; and yet the court held it furnished no ground of action. The doctrine contained in Clark *622v. Foot is fully recognized and approved,- and in this state itf now settled, in the case of Radcliff’s Ex’rs v. The Mayor &c. of Brooklyn, (4 Comst. 195, 200.) A great variety of cased are there collected and commented upon by Judge' Bronson; and the conclusions to winch the court arrived fully dispose of the present case.
[Saratoga General Term, July 8, 1856.The plaintiff should have been nonsuited, and the jury having' found against the law and the evidence, the judgments of the' county court and of the justice must be reversed, with costs.
C. L. Allen, Paige, James and Rosehrms, Justices.]