A fire was communicated by a locomotive engine of the defendant to land of one Davis adjacent to the defendant’s railroad track. The fire by its own action and by the operation of natural causes spread and passed across the land of Davis to the land of the plaintiff, where the injury set forth in the complaint was done.
While the fire was burning on the land of Davis the track-foreman of the defendant, with men under him, commenced to extinguish it, which could easily have been accomplished. While the track-foreman and his men were so engaged, Davis came, and said he preferred that the bogs on his land should burn, if the fire was subdued elsewhere so that it could not spread. The fire then was extinguished elsewhere, and thereupon the track-foreman and his men left, leaving some of the bogs burning.
The court finds that the servants of the defendant were not prevented by Davis from extinguishing the fire, but that they supposed, as Davis did, that no injury could result if the fire was left in the bogs. In this however they were *269disappointed, for the fire penetrated to the peat beneath the bogs and so spread to the plaintiff’s land, which adjoined the land of Davis on the east. These facts are made the' basis of the recovery of damages of the defendant by virtue of the provisions of a statute enacted in 1881, (Acts of that year, chap. 92,) the first section of which is as follows:— “ Where any injury is done to a building or other property of any person or corporation, by fire communicated by a locomotive engine .of any railroad corporation, without contributory negligence on the part of the person or corporation entitled to the care and possession of the property injured, the said railroad corporation shall be held responsible in damages to the extent of such injury to the person or corporation so injured; and any railroad corporation shall have an insurable interest in the property for which it may be so held responsible in damages along its route, and may procure insurance thereon in its own behalf.”
Aside from the effect of the interposition of Davis, which we will presently consider, it is obvious that the facts are ample to bring the case within the provisions of the statute. The right of the plaintiff to recover is not dependent at all upon any negligence on the part of the defendant as at common law, nor is it material that the fire was not directly communicated to the plaintiff’s land, but reached it through the intervening land of another.
In Perley v. The Pastern R. R. Co., 98 Mass., 99, under a similar statute, the sparks from the locomotive engine first set fire to the grass in the open field near by, which spread over the premises of several different owners to the plaintiff’s wood lot half a mile distant, where the injury was done for which the railroad company was held liable.
Such a construction of our statute the defendant does not seek to controvert, but relies solely on the principle that the intervention of the independent act of Davis between the act of the defendant complained of and the injury to the plaintiff, constitutes in law the proximate cause of the injury, and that therefore the act of the defendant is too remote.
*270This introduces us to a realm of law abounding in nice distinctions, which however need not be particularly discussed. The general principle which the defendant invokes is established by a strong array of authorities, but the facts as found by the court would seem to forbid its application to the present case.
In the first place, it is difficult to discover in the independent act of Davis a sufficient power to stand as the cause of the injury. It is not pretended that he contributed any new force or power whatever to modify the result of the original act. The argument is merely that he adopted the fire as his own, but in so doing he did nothing to increase or extend it, but simply let it alone, so that the original cause was allowed to work out its natural consequences. Then too this adoption of the fire was a matter confined to Davis and the defendant, and was voluntarily assented to by the latter. How then could it relieve the defendant of a primary liability which the law imposes in favor of third persons ? Could the defendant delegate its duty to another and thereby escape liability ? If the servants of the defendant were' obliged by law to leave the premises of Davis upon his suggestion before the fire was extinguished, it might well be contended that a new power had intervened which made the act of the defendant too remote. But nothing of this kind happened. The finding says that Davis did not prevent the extinguishment of the fire. Whether he could have done so rightfully we are not now called upon to determine.
-In making the railroad corporations insurers against the consequences of fire communicated by their locomotive engines, the law implies in them the right and duty to put it out when communicated.
We know that under the general police power of a state and by the law of overruling necessity private property during a fire may be destroyed, to prevent the spreading of a conflagration. Whether this principle would allow a railroad corporation to enter upon land against the will of the owner to extinguish a small fire which under the circum*271stances did not at the time appear to be threatening to other property, may admit of some question, which we will not now attempt to solve. It will suffice for the purposes of this case that there was no prohibition at all. Assuming that the statute is valid, it makes railroad corporations insurers of all the property along the road liable to be burned by the running of locomotive engines. As soon as a fire is thus kindled the duty arises to prevent its spreading to other adjoining lands. The obligation is very different from that of the landowner at common law, who is liable only for the consequences of his negligence as to fire which he kindles on his own land.-
The railroad corporation is bound at all hazards to prevent the fire from spreading, and is liable inevitably unless there ,is contributory negligence on the part of the landowner. Now the duty which the defendant owed the plaintiff could not be excused by an arrangement made with a third person without the plaintiff’s consent. One may part with his rights, but can never cancel his duties without the consent of those to whom they are due.
For these reasons we think the intervention of Davis was not sufficient to break the connection between the act of the defendant complained of and the resulting injury to the plaintiff for which this suit is brought.
There was no error in the judgment complained of.
In this opinion the other judges concurred.