The defendants deny the plaintiff’s right to recover under the statutes, for the loss of his buildings by fire communicated from a locomotive; on the ground that, when the railroad was located and built, Lovell, who then owned the plaintiff’s premises, at the hearing upon his petition for the assessment of damages, claimed compensation, not only for so much of the land as was taken, but also for the risk and danger to these very buildings by fire, produced evidence in support of his claim, and was in fact awarded additional damages on that account.
The jury could not lawfully take into consideration any damages not directly occasioned by laying out, making and maintaining the railroad, and would seem to have no right, as an element of damage, to determine how much the owner should receive in discharge of the defendants’ liability for the future destruction of his buildings by fire from the defendants’ engine. To what extent it is proper for the jury to contemplate such contingencies, it is not here necessary to discuss. Presbrey v. Old Colony & Newport Railway Co. 103 Mass. 1. Walker v. Same, Ib. 10. Proprietors of Locks & Canals v. Nashua & Lowell Railroad Co. 10 Cush. 385. Boston & Worcester Railroad Co. v. Old Colony Railroad Co. 12 Cush. 605. Dodge v. County Commissioners, 3 Met. 380.
It is a sufficient answer to the defendants’ offer of evidence, that damages on account of exposure to fire, even if proper to be allowed, must be presumed to have been estimated by the jury in reference to, and making due allowance for, the indemnity provided by the statute, whenever the loss is shown to have been caused by passing engines. It is plain that this indemnity is not so perfect and complete as to preclude, in the estimate of' damages, a consideration of the direct effect of a constant liability to *202destruction by fire from this new source, upon the present value of a dwelling, erected upon the remaining portion of the estate, as a safé and comfortable residence, or for purposes of sale. The present value of the property must be to some extent depreciated, although there is a chance that the buildings may never be destroyed by fire, and although, if they are, it is certain that the owner, whoever he may then be, will be indemnified under the statute for the actual loss he sustains. The injury to be measured in the assessment of damages occasioned by the location of the railroad, in this respect at least, is broader than the indemnity of the statute. In fact, the latter rests on entirely different principles. 1STo owner of buildings, however near the track, or however great the danger, can recover damages on account of the location and construction of the road, unless some part of his estate was taken or directly affected; while for injury by fire, under the statute, whenever it happens, the road is responsible, although the building may be far removed from the track and erected since the road was built. Perley v. Eastern Railroad Co. 98 Mass. 414.
But further, if the jury included in their verdict a sum which, upon some doubtful computation of chances, would be equivalent, in their opinion, to an insurance against this risk, and it was paid to an owner of this estate, we do not see, under the circumstances offered to be shown, how it would defeat the right of such owner himself to recover for a loss under the statute. It would not amount to a release or waiver of his claim, and there was no promise or agreement on his part, founded on any consideration, not to claim damage in case of actual loss. Seymour v. Carter, 2 Met. 520. It is at most the mistake or fault of the jury. And to give effect to this defence would be like allowing the defendants to show, in an action for a personal injury to the plaintiff himself, or to his cattle, upon the track, that the jury considered such exposure in their estimate of damages, when the land was taken. It is not easy to see why the same defence would not be equally well founded, against one who had conveyed the right of way to the corporation upon a price agreed, and which must be presumed to have been fixed' by the owner, to cover all inconveti*203fence and risk. Lyman v. Boston & Worcester Railroad Co. 4 Cush. 288.
Finally, the evidence offered, as against the present plaintiff, was clearly incompetent. No damages were assessed in his favor. He was not then the owner. The additional risk and expense of protecting these buildings against fire was incident to the estate when he became owner. And in the language of Shaw, O. J., in Hart v. Western Railroad Co. 13 Met. 99, 105, “this indemnity, provided by law against a special risk, may be considered as a quality annexed to the estate itself, and passing with it to any and all persons who may stand in the relation of owners.”
The meteorological observations at the asylum, which were admitted in evidence, do not appear to have been so remote as to mislead the jury as to the general direction of the wind.
Exceptions overruled.