operating railroad. Wall v. Platt, 169 Mass. 398 (48 N. E. Rep. 270). See opinion for collation of numerous authorities.

Sec. 843. Actions for injuries by fire-Complaint. A complaint, in an action for the negligent destruction by fire, of fruit trees, bushes and vines, sufficiently alleges that they were a part of the freehold and added to the value of the land, by alleging that they were growing and standing upon it at the time they were destroyed. Missouri, K. & T. Ry. Co. v. Lycan, 57 Kan. 635 (47 Pac. Rep. 526). A complaint alleging the destruction of property by fire which a railroad company negligently permitted to originate on its right of way and negligently permitted to escape upon plaintiff's land, is sufficient. Chicago & E. R, Co. v. Long, 16 Ind. App. 401 (45 N. E. Rep. 484). Allegations of particular complaint for injury by fire held sufficient to show the defendant was guilty of negligence and not of a willful tort. Miller v. Miller, 17 Ind. App. 605 (47 N. E. Rep. 338). A complaint which alleges the negligent accumulation of combustible matter upon the defendant's right of way, which was set on fire by the negligent emission of sparks from its locomotives, which fire was negligently permitted to spread to and destroy plaintiff's property without negligence on his part, is sufficient. Chicago & S. E. Ry. Co. v. Daily, 18 Ind. App. 308 (47 N. E. Rep. 1078). On a complaint for damages resulting to two tracts of land"contiguous and next adjoining" the defendant's premises, a recovery may be had where the proof shows that the two tracts referred to formed one continuous close, and in any point were contiguous or next adjoining the defendant's premises. A public road running through and within said tracts would not make them separate and distinct. Dolby v. Hearn, 1 Marv. (Del.) 153 (37 Atl. Rep. 45).

Sec. 844. Actions for injuries by fire-Costs and attorneys' fees. Where title to land is not involved in an action against a railroad company, for negligently setting fire to the plaintiff's land, a judgment in his favor does not carry costs, under How. Ann. Mich. Stat., § 8964, subd. 2. Fisk v. Wabash R. Co., 114 Mich. 248 (72 N. W. Rep. 205). A statute (Kan. Laws 1885, ch. 155, § 2) authorizing the allow

ance of an attorney's fee in actions against railroad companies to recover damages caused by fire, is constitutional. Atchison, T. & S. F. R. Co. v. Matthews, 58 Kan. 447 (49 Pac. Rep. 602).

Sec. 845. Actions for injuries by fire-Measure of damages. Where the thing destroyed is a part of the realty, ordinarily, its value would be the measure of the injury to the freehold; but if, for any reason, the injury to the realty should be in fact less than the value of the thing destroyed, the measure of recovery would be limited to the actual diminution in the value of the realty. Missouri, K. & T. Ry. Co. v. Lycan, 57 Kan. 635 (47 Pac. Rep. 526). Where an orchard has been destroyed, the measure of damages is the difference between the fair market value of the farm upon which the orchard was situated, not including the grass or fencess injured or destroyed, immediatly before the fire and its fair market value immediately after the fire, as injuriously affected by said fire. Rowe v. Chicago & N. W. Ry. Co., 102 Ia. 286 (71 N. W. Rep. 409). The court say: "The true rule in such cases is that, when the property destroyed or injured is so closely connected with the real estate on which it stands or to which it is attached that it has no value separate and independent of the real estate, or the injury is to the soil itself, the measure of damages is the difference in value between the real estate before the injury and after it.' 3 Elliott, R. R. § 1239; Hayes v. Railroad Co., 45 Minn. 17 (47 N. W. Rep. 260), and cases cited; Railroad Co. v. Spencer, 149 Ill. 97 (36 N. E. Rep. 91); Moore v. Railroad Co., 78 Wis. 120 (47 N. W. Rep. 273; Dwight v. Railroad Co., 132 N. Y. 199 (30.N. E. Rep. 398; 15 L. R. A. 612), and cases cited; Ward v. Railway Co., 61 Minn. 449 (63 N. W⚫ Rep. 1104); Railroad Co. v. Haynes, 1 Kan. App. 586 (42 Pac. Rep. 259); Railroad Co. v. Hoover, 3 Kan. App. 577 (43 Pac. Rep. 854); Railroad Co.v. Wallace, 74 Tex. 581 (12 S.W.Rep. 227); Railroad Co. v. Fulmore, Tex. Civ. App. (29 S. W. Rep. 688); Railroad Co. v. Countryman, 16 Ind. App. 139 (44 N. E. Rep. 265); 5 Am. & Eng. Enc. Law, p. 36." No damages can be awarded to the owner of an orange orchard for its destruction by fire set out by a railroad company, where it

appears that the owner had abandoned the orchard and allowed it to run to waste and become so dilapidated and overgrown with weeds and grass that extinguishment by fire would prove a benefit rather than an injury to him. Bossu v. New Orleans, Ft. F. & G. I. R. Co., 49 La. 1593 (22 So. Rep. 809). The liability of a railroad company for property destroyed by fire under Mass. Pub. Stat., ch. 112, § 214, is that of an insurer, being idemnity for the loss actually sustained. In case of destruction of buildings, where the market value would not afford full idemnity, the measure of damages may be determined by taking into consideration their original cost, the cost of replacing them, making allowance for depreciation on account of age and use. Wall v. Platt, 169 Mass. 398 (48 N. E. Rep. 270).

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Sec. 846. Actions for injuries by fire-Evidence. The fact that a fire was started by a locomotive, may be proved by circumstantial evidence. Hemmi v. Chicago G. W. Ry. Co., 102 Ia. 25 (70 N. W. Rep. 746); Atchison, T. & S. F. R. Co. v. Mathews, 58 Kan. 447 (49 Pac. Rep. 602). Where the chief damage was the destruction of an orchard upon a farm, evidence of the value of its product for several years prior to the fire is admissible. Rowe v. Chicago & N. W. Ry. Co., 102 Ia. 286 (71 N. W. Rep. 409). In an action against a railroad company for injury by fire, it is competent to show that the same engine started other fires on the same day. Thomas v. New York, C. & St. L. R. Co., 182 Pa. St. 538 (38 Atl. Rep. 413); Lake Erie & W. R. Co. v. Gould, 18 Ind. App. 275 (47 N. E. Rep. 941). Statements of an employe of a railroad company who started the fire, on account of which the action is brought, made while the fire was burning, are admissible. Mobile & O. R. Co. v. Stinson, 74 Miss. 453 (21 So. Rep. 14). When it is claimed that a certain engine, in charge of a particular engineer, was defective, and was so negligently managed as to unnecessarily throw out fire, from which damage resulted, testimony of the condition of another engine, or of the careless conduct of other engineers, is ordinarily not admissible. The declarations of the section foreman and depot agent of a railroad company, made after the fire occurred, in regard to the condition and manage

ment of the engine, and which had no connection with the business committed to them, are mere hearsay. Atchison, T. & S. F. R. Co. v. Osborn, 58 Kan. 768 (51 Pac. Rep. 236). One testifying to the quantity and value of grain destroyed, must confine his testimony to his own knowledge. Atchison, T. & S. F. R. Co. v. Osborn, 58 Kan. 768 (51 Pac. Rep. 266). For cases determining particular questions of evidence in actions against a railroad company for injury to property by fire, see Tyler v. Chicago & N. W. Ry. Co., 102 Ia. 632 (71 N. W. Rep. 536); Montague v. Minneapolis, St. P. & S. Ste M. Ry. Co., 96 Wis. 633 (72 N. W. Rep. 41); Missouri, K. & T. Ry. Co. v. Lycan, 57 Kan. 635 (47 Pac. Rep. 526); Kimball v. Borden, 95 Va. 203 (28 S. E. Rep. 207). Particular evidence held insufficient to authorize a peremptory instruction in favor of the defendant. Taylor v. Louisville & N. R. Co., Ky. (41 S. W. Rep. 551). Particular evidence held insufficient to authorize a recovery of damages from a landowner on account of fire started by his employe. Thiele v. Newman, 116 Cal. 571 (48 Pac. Rep. 713). Particular cases in which the question of negligence was held to be a question for the jury. Hemmi v. Chicago G. W. Ry. Co., 102 Ia. 25 (70 N. W. Rep. 746); Whitson v. Ames, 68 Minn. 23 (70 N. W. Rep. 793); Thomas v. New York, C. & St. L. R. Co., 182 Pa. St. 538 (38 Atl. Rep. 413); Patteson v. Chesapeake & O. R. Co., 94 Va. 16 (26 S. E. Rep. 393). Particular evidence held to show that a fire destroying property was caused by the negligence of a railroad company. New York, C. & St. L. R. Co. v. Grossman, 17 Ind. App. 652 (46 N. E. Rep. 546); Atchison, T. & S. F. R. Co. v. Mathews, 58 Kan. 447 (49 Pac. Rep. 602); Mobile & O. R. Co. v. Stinson, 74 Miss. 453 (21 So. Rep. 14).

Sec. 847.

Miscellaneous notes. To sustain an action for damages to property by fire, it must appear that the injury resulted from the defendant's negligence. Dolby v. Hearn, 1 Marv. (Del.) 153 (37 Atl. Rep. 45). To entitle one to recover damages for the destruction of property by fire, he must be the owner thereof. One who has cut hay from the unappropri ated lands of the United States has such ownership thereof, as he may sue for its destruction by fire negligently set out by

another. Mathews v. Great Northern Ry. Co., 7 N. Dak. 81 (72 N. W. Rep. 1085). A landowner may become liable for damages resulting from a fire negligently started by one with whom he has contracted to clear his land, where the negligence flows directly from the acts which the contractor agrees to do, and is by the landowner authorized to do, and is the natural and proper consequence of the performance of the work in the manner and time agreed upon. Cameron v. Oberlin, 19 Ind. App. 142 (48 N. E. Rep. 386). For an exhaustive discussion and collection of authorities as to the liability of one storing gunpowder and dynamite for injuries caused to property by their explosion, see Kinney v. Koopman, 116 Ala. 310 (22 So. Rep. 593; 37 L. R. A. 497); Rudder v. Koopman, 116 Ala. 332 (22 So. Rep. 601; 37 L. R. A. 489).

STATUTE OF FRAUDS.

EPITOME OF CASES.

Sec. 848. As to what contracts are within the statute of frauds. A parol promise to reconvey lands, made by a grantee to whom they have been conveyed in order to defeat creditors, is void. Poppe v. Poppe, 114 Mich. 649 (72 N. W. Rep. 612). An oral agreement by an owner of land to give an interest therein to one who contributes money to build a house thereon, is within the statute of frauds. Walker's Adm'r v. Tyler, 94 Va. 532 (27 S. E. Rep. 434). A parol sale of growing trees to be cut and removed, is void under the statute of frauds. Walton v. Lowrey, 74 Miss. 484 (21 So. Rep. 243). An agreement by a debtor to mortgage to his surety, property for which he holds a contract of purchase as soon as he acquires the legal title, is concerning lands and within the statute. Hackett v. Watts, 138 Mo. 502 (40 S. W. Rep. 113). An oral agreement between the purchaser of land and one interested in the purchase, that the land shall "not be sold nor conveyed for " less than a specified sum without the latter's consent, affects the title and is void unless in writing; but an agreement between such parties that the profits