This case was tried by the court without the intervention of a jury, and judgment was rendered for the plaintiffs. From this judgment the defendant appeals, and here assigns its rendition as error.
But one question is argued and presented for our consideration, and that is whether there was a duty owing from the defendant to the plaintiffs, under the facts, for a violation of which the plaintiffs have a cause of action. There is no- pretense that the defendant was in any way connected with the origin of the fire which destroyed the plaintiff’s property. The undisputed evidence is that, when the defendant’s servants moved the locomotive and train of 24 freight cars, from the coim pany’s yards- to the point intervening between the hydrant or water plug and the plaintiff’s property that was on fire, it was without any knowledge or notice on the part of the defendant or of its servants of any pur*99pose or intention of the fire department, or of any one else, of laying a hose across the defendant’s track, from said water plug to the plaintiff’s property. The movement of the train of cars was in the orderly course of the defendant’s business. The place at which the train of cars was stopped, near the dispatcher’s office, was its customary and usual place for stopping to receive orders and clearance card from the dispatcher, before it could proceed over what was termed the “block”' —indicating in this case, a certain section of railroad used in common by the defendant company and the Southern Bailway Company — on its journey to Nashville, the place of its destination. The evidence as to the length of time the train remained stationary varies from 5 to “15 or 20” minutes; but we think this unimportant, as the evidence is without dispute that the train moved on its journey over the block, immediately upon the receipt by the conductor, who had control of' its movements, of the clearance card from the dispatcher. Thus it is seen that the defendant company was in the rightful use of its property, in the ordinary and usual course of business. It was guilty of no negligence, in the exercise of its rights, resulting in injury to the plaintiff’s property. In the legitimate use of its own tracks, in the orderly course of business, the defendant, under the evidence in this case, was not by law charged with the duty to move its train of cars otherwise than according to its own rules and regulations;
We fully recognize the principle of law expressed in the maxim, “Sic utere tuo ut alienum non laidas”; but this principle finds no application under the facts of this case. We find the doctrine applicable here well stated in Cooley on Torts (1st Ed.) p. 81, where it is-said: “It is ‘damnum absque injuria’ also if through the lawful and proper exercise by one man of his own *100rights a damage results to another, even though he might have anticipated the result and avoided it. That which it is right and lawful for one man to do cannot furnish the foundation for an action in favor of another. Nor can the absence of commendable motive on the part of the party exercising his rights be the legal substitute or equivalent for the thing amiss which is one of the necessary elements of a wrong. An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent.” Again, in American & English Encyclopedia of Law (2d Ed.) vol. 8, p. 695, the doctrine is thus stated: “Applying this principle, it may be stated as a general proposition that every man has a right to- the natural use and enjoyment of his own property, and if while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is ‘damnum absque injuria,’ for the rightful use of one’s own property may cause damage to another without any legal wrong.” Applying this doctrine to the case before us,, •our conclusion is that, on the undisputed evidence, the trial court should have rendered judgment in favor of the defendant.
In respect to legal responsibility to a third person, there is, we think, a distinction to be drawn between an active and a passive use, in the enjoyment of one’s property rights. To illustrate: If, in the present case, the fire hose had been laid from the hydrant, across the tracks of the defendant, to the fire, and the defendant’s servants, with knowledge of the existing conditions as to the fire and the laying of the hose, had willfully or negligently run the train of cars over the hose, destroying it, and thereby prevented the extinguishing of the fire, a legal liability for such conduct would have arisen. That would have been an active use of one’s prop*101erty in violation of the maxim, “Sic utere tno ut alienum non laidas.” On the other hand, if (as was the case here) the defendant’s train of cars was already rightfully standing on its tracks intervening the hydrant and the plaintiff’s burning house, and the defendant merely failed or refused to promptly move its train out of the way when requested so to do, in order that the hose might he laid across its tracks, there would be no case for the application of the above-quoted legal maxim. In the latter instance the use would be merely passive. The law imposes no duty on one man to aid another in the preservation of the latter’s property, but only the duty not to injure another’s property in the use of his own.
In the case of American Sheet & Tin Plate Co. v. Pittsburg & L. E. Ry. Co., 143 Fed. 789, 75 C. C. A. 47 12 L. R. A. (N. S.) 382, cited and relied on by counsel for appellees, the facts are different from those in the case at bar. In that case the train of cars rested across a street crossing where the firemen wished to lay a hose to reach the fire. It is true it is stated that the street had been abandoned as such, by the city, hut it was maintained as a crossing by the company. The case, we think, when properly understood, is not opposed to the views we have expressed. Moreover, it was decided in that case that the railroad company was not liable.
Other cases cited by counsel are different, in their facts, from the case at bar, and are easily to he differentiated in principle.
The judgment appealed from will be reversed, and one here rendered in favor of the defendant.
Reversed and rendered.'
Simpson, Mayfield, and Sayre, JJ., concur.