LEROY FIBRE COMPANY, v. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY.

The questions certified present two facts—(1) The negligence of the railroad was the immediate cause of the destruction of the property. (2) The property was placed by its owner near the right of way of the railroad, but on the owner's own land.

The query is made in the first two questions whether the latter fact constituted evidence of negligence of the owner, to be submitted to the jury. It will be observed, the use of the land was of itself a proper use,—it did not interfere with nor embarrass the rightful operation of the railroad. It is manifest, therefore, the questions certified, including the thire question, are but phases of the broader one, whether one is limited in the use of one's property by its proximity to a railroad; or, to limit the proposition to the case under review, whether one is subject in its use to the careless as well as to the careful operation of the road. We might not doubt that an immediate answer in the negative should be given if it were not for the hesitation of the circuit court of appeals, evinced by its questions, and the decisions of some courts in the affirmative. That one's uses of his property may be subject to the servitude of the wrongful use by another of his property seems an anomaly. It upsets the presumptions of law, and takes from him the assumption, and the freedom which comes from the assumption, that the other will obey the law, not violate it. It casts upon him the duty of not only using his own property so as not to injure another, but so to use his own property that it may not be injured by the wrongs of another. How far can this subjection be carried? Or, confining the question to railroads, what limits shall be put upon their immunity from the result of their wrongful operation? In the case at bar, the property destroyed is described as inflammable, but there are degrees of that quality; and how wrongful must be the operation? In this case, large quantities of sparks and 'live cinders' were emitted from the passing engine. Houses may be said to be inflammable, and may be, as they have been, set on fire by sparks and cinders from defective or carelessly handled locomotives. Are they to be subject as well as stacks of flax straw, to such lawless operation? And is the use of farms also, the cultivation of which the building of the railroad has preceded? Or is that a use which the railroad must have anticipated, and to which it hence owes a duty, which it does not owe to other uses? And why? The question is especially pertinent and immediately shows that the rights of one man in the use of his property cannot be limited by the wrongs of another. The doctrine of contributory negligence is entirely out of place. Depart from the simple requirement of the law, that everyone must use his property so as not to injure others, and you pass to refinements and confusing considerations. There is no embarrassment in the principle even to the operation of a railroad. Such operation is a legitimate use of property; other property in its vicinity may suffer inconveniences and be subject to risks by it, but a risk from wrongful operation is not one of them.

The legal conception of property is of rights. When you attempt to limit them by wrongs, you venture a solecism. If you declare a right is subject to a wrong, you confound the meaning of both. It is difficult to deal with the opposing contention. There are some principles that have axiomatic character. The tangibility of property is in its uses, and that the uses by one owner of his property may be limited by the wrongful use of another owner of his is a contradiction. But let us pass from principle to authority.

Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L. ed. 356, was an action for damages for the destruction of a sawmill, lumber shed, and other buildings and manufactured lumber, by fire communicated by a locomotive engine of a railroad. Some of the buildings were erected in part on the company's land near its track, and the railroad company requested the court to charge the jury that the erection of the buildings or the storing of lumber so near the company's track, as the evidence showed, was an improvident or careless act, and that if such location contributed in any degree to the loss which ensued, then the plaintiffs could not recover, even though the fire was communicated by the railroad company's locomotive. The court refused the request and its action was sustained. Mr. Justice Strong, speaking for the court, said: 'Such a location, if there was a license [for it, it not then being a trespass], was a lawful use of its property by the plaintiffs; and they did not lose their right to compensation for its loss occasioned by the negligence of the defendant. Cook v. Champlain Transp. Co. 1 Denio, 91; Fero v. Buffalo & State Line R. Co. 22 N. Y. 215, 78 Am. Dec. 178.'

In Cincinnati, N. O. & T. P. R. Co. v. South Fork Coal Co. 1 L.R.A.(N.S.) 533, 71 C. C. A. 316, 139 Fed. 530, there was the destruction of lumber placed on the railroad's right of way by permission of the railroad. It was destroyed by fire occurring through the negligent operation of the railroad's trains. Contributory negligence was urged against the right of recovery. The court (circuit court of appeals for the Sixth circuit), commenting on the cases cited by the railroad, said: 'But in so far as the opinions go upon the theory that a plaintiff must lose his right of compensation for the negligent destruction of his own property, situated upon his own premises, because he had exposed it to dangers which could come to it only through the negligence of the railroad company, they do not meet our approval.'

After citing cases, the court continued: 'The rights of persons to the use and enjoyment of their own property are held upon no such tenure as this. The principle would forbid the use of property for many purposes if in such proximity to a railroad track as to expose it to dangers attributable to the negligent management of its business.' Other cases might be adduced. They are cited in Thompson on Negligence, § 2314, and Shearman and Redfield on Negligence, § 680, for the principle that an owner of property is not limited in the uses of his property by its proximity to a railroad, or subject to other risks than those which come from the careful operation of the road or unavoidable accident.

The first and second questions we answer in the negative, and the third question in the affirmative.

So ordered.

The first two questions concern a standard of conduct, and therefore that which, in its nature and in theory, is a question of law. In this, I gather, we all agree, although the proposition often is forgotten or denied. But while the standard is external to the judgment of the party concerned, and must be known and conformed to by him at his peril (The Germanic [Oceanic Steam Nav. Co. v. Aitken] 196 U. S. 589, 596, 49 L. ed. 610, 613, 25 Sup. Ct. Rep. 317), courts, by a practice that seems at first sight an abdication of their function where it is most needed, but that I dare say is justified by good sense, in nice cases leave the standard to the jury as well as the facts. In the questions before us, however, the elements supposed are few and frequently recurring, so that but for what I have to say I should be very content to find that we were able to lay down the proper rule without a jury's aid. Furthermore, with regard to what that rule should be, I agree, for the purposes of argument, that as a general proposition people are entitled to assume that their neighbors will conform to the law; that a negligent tort is unlawful in as full a sense as a malicious one, and therefore that they are entitled to assume that their neighbors will not be negligent.

Nevertheless, I am not prepared to answer the first question, No, if it is to be answered at all. We are bound to consider that at a trial the case would be presented with more facts,—that this case was presented with at least one more fact bearing upon the right to recover,—I mean the distance. If a man stacked his flax so near to a railroad that it obviously was likely to be set fire to by a well-managed train, I should say that he could not throw the loss upon the railroad by the oscillating result of an inquiry by the jury whether the road had used due care. I should say that, although of course he had a right to put his flax where he liked upon his own land, the liability of the railroad for a fire was absolutely conditioned upon the stacks being at a reasonably safe distance from the train. I take it that probably many, certainly some, rules of law based on less than universal considerations are made absolute and universal in order to limit those over-refined speculations that we all deprecate, especially where such rules are based upon or affect the continuous physical relations of material things. The right that is given to inflict various inconveniences upon neighboring lands by building or digging is given, I presume, because of the public interest in making improvement free, yet it generally is made absolute by the common law. It is not thought worth while to let the right to build or maintain a barn depend upon the speculations of a jury as to motives. A defect in the highway, declared a defect in the interest of the least competent travelers that can travel unattended without taking legal risks, or in the interest of the average man, I suppose to be a defect as to all. And as in this case the distinction between the inevitable and the negligent escape of sparks is one of the most refined in the world, I think that I must be right so far, as to the law in the case supposed.

If I am right so far, a very important element in determining the right to recover is whether the plaintiff's flax was so near to the track as to be in danger from even a prudently managed engine. Here certainly, except in a clear case, we should call in the jury. I do not suppose that anyone would call it prudent to stack flax within 5 feet of the engines, or imprudent to do it at a distance of half a mile, and it would not be absurd if the law ultimately should formulate an exact measure, as it has tended to in other instances (Martin v. District of Columbia, 205 U. S. 135, 139, 51 L. ed. 743, 744, 27 Sup. Ct. Rep. 440); but at present I take it that if the question I suggest be material, we should let the jury decide whether 70 feet was too near by the criterion that I have proposed. Therefore, while the majority answer the first question, No, on the ground that the railroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso that it was to be answered No, in case the jury found that the flax, although near, was not near enough to the trains to endanger it if the engines were prudently managed, or else I should decline to answer the question because it fails to state the distance of the stacks.

I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized. See Nash v. United States, 229 U. S. 373, 376, 377, 57 L. ed. 1232, 1235, 1236, 33 Sup. Ct. Rep. 780. Negligence is all degree,—that of the defendant here degree of the nicest sort; and between the variations according to distance that I suppose to exist, and the simple universality of the rules in the Twelve Tables, or the Leges Barbarorum, there lies the culture of two thousand years.

I am authorized to say that the CHIEF JUSTICE concurs in the opinion that I express.