said lands of the said plaintiff; that said leaves while the said defendant was using its said railroad and its locomotive engines thereon, in a lawful and careful manner, accidentally and unavoidably caught fire," and thence the injury complained of.

This plea, it is manifest, demands for its support, the concession that the law requires a man to alter the natural conditions of his property and to control in some degree, the operation of the laws of nature with respect to such property in favor of the owner of the adjacent lands. But this concession I think cannot be made. In the absence of special legislation a man does not become a wrongdoer by leaving his property in a state of nature. If water falls from the clouds upon its surface the owner is not obliged to counteract the law of gravity in order to prevent such water from flowing into the adjacent land, or if the soil becomes disintegrated by the action of the heat he is under no duty to prevent the dust thence arising from being carried through the air into the house of his neighbor. Such results are purely sequences of natural causes, and like all other effects of the vis major must be submitted to; they cannot in themselves, form any ground for a legal complaint. When this plea, therefore, attempts to fashion a wrong out of such matters, the very essence of legal liability in this department of torts, is overlooked. Legal negligence does not consist simply of an omission to do that which would have prevented the infliction of damage on another; but in addition to this it involves a breach of duty. Mr. Wharton in his complete and carefully considered definition of negligence in its civil relations, says, it "is such an inadvertent imperfection by a responsible human agent, in the discharge of a legal duty, as immediately produces in an ordinary and natural sequence a damage to another" Law of Neg. sect. 2. This plea charges that the plaintiff did not prevent the leaves falling from his trees, from being carried by the wind to the land of the defendant, but it altogether fails to show that he was under any legal obligation so to do. If the law annexed such a condition as that to the ownership of land, an action would lie for every leaf that should be blown by the wind from the trees upon such land to the neighboring property. But there is no such obligation known to the law. All land is subject to the servitude of receiving the leaves brought to it in the course of nature, and, as a compensation, can dispose of its own leaves in the same manner. The consequence is, there

was no negligence in the plaintiff allowing the leaves in question to be carried to the railway of the defendant, and that being so, it follows, that being on the land of the defendant rightfully, it became its duty to remove them when it desired to use fire on its land under dangerous conditions.

Under the force of the principles thus adopted it becomes also manifest that the plaintiff is not chargeable with any legal neglect. from leaving fallen leaves, the product of the trees, on his own land. It was his right to leave them there. A person is not called upon to anticipate negligence on the part of another, and, by way of prevention, to make provision against its effects. The fire in question, upon the facts stated in these pleadings, was caused solely by the illegal act of the defendant, and there is no provision of law which requires the plaintiff to foresee the doing of such an act, and to put his own land in a situation to withstand its effect. He owes no duty to the defendant in this respect, and consequently, negligence, in the legal sense, cannot be imputed to him. It never would be thought that a person owning land in the vicinity of a canal was bound to raise enbankments around such property to guard against its overflow from water escaping by negligence, from such artificial aqueduct, and yet the contention for the existence of such an obligation would be quite as tenable as is the claim that the present plaintiff was bound to put his property in a condition to withstand fire proceeding from the heedlessness of the defendant. I am aware that it has been ruled in Illinois, that the owners of lands contiguous to railroads are as much bound to keep their lands free from dry grass as the railroad company is on its roadway, but I regard such cases as opposed to well settled legal principles: Ohio & M. R. R. Co. v. Shanefelt, 47 Illinois 497, 505; Illinois Central R. R. Co. v. Nunn, 51 Illinois 78. If this is the doctrine of the law it is, I think, entirely manifest that the long line of decisions on the subject of the careless use of fire by a proprietor on his own property, which we find in the books, have been rendered in utter disregard of this important condition. The ruling of the courts has invariably been that every proprietor is responsible for the ordinary and natural consequence of the careless use of fire on his own premises, and this without the least reference to the condition of the adjacent lands to which the conflagration has spread. No support in any of these authorities can be found for the assumption that if a landowner places his

stacks of grain or hay on the confines of his land that thereby, in a legal point of view, he becomes a contributor to a fire occasioned by negligence on the land of his neighbor. By such an act it is true he takes the risks of the consequences of an accidental fire on the contiguous premises, but not of a neglect which he can be called upon neither to anticipate or to guard against. In the leading case in Illinois it is assumed that the same duty which will compel the railway company to clear its roadway of combustibles, imposes an equal obligation on the owner of the contiguous land; but the distinction between the cases is obvious: the company uses a dangerous agent and must provide proper safeguards, the landowner does nothing of the kind and has a right to remain quies

cent.

The plaintiff should have judgment.

Supreme Court of Illinois.

JOHN L. MARSH v. FAIRBURY, PONTIAC & NORTH-WESTERN RAILWAY CO.

The specific performance of a contract is a matter not of absolute right in the party, but of sound discretion in the court.

Railroad companies are incorporated not for the promotion of mere private ends, but in view of the public good they may subserve; hence, contracts with them which cannot be specifically enforced without interfering with the rights of the public, will not in equity be enforced.

BILL in equity filed in the Livingston county Circuit Court, setting forth a written contract made by complainant with the defendant, by which it was alleged, that in consideration of the grant by complainant of the right of way for the railway across his land and the procurement of sufficient ground for passenger and freight depots, and for main and side tracks, the company among other things agreed to locate its passenger and freight depots upon the land of complainant, and at no other point. The bill further alleged that the complainant had secured the right of way for said company pursuant to the contract, and that it had built and was operating its road thereon, and that he had procured sufficient ground for its passenger and freight depots, which the company was at liberty to use and occupy, and he further offered to fulfil every other portion of the contract upon his part to be performed;

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but that the company, in violation of its agreement, was about to locate its passenger and freight depots in another part of the town, about a mile east, and refused to erect them upon the land of complainant. That he owned a large number of lots where by the contract the depots should be built, and the prospective advancement in value of these lots was the main inducement that prompted him to enter into the contract.

The bill asked for the specific performance of the contract, and prayed an injunction against the erection and use of any passenger and freight depots in the town of Fairbury, outside of the ground named in the contract.

To the bill a demurrer was interposed.

The opinion of the court was delivered by

SHELDON, J.-This was a bill in Chancery filed to enforce the specific performance of a contract made by the Fairbury, Pontiac & North-Western Railway Company, to locate passenger and freight depots of said road in Marsh's addition to Fairbury and at no other point in said town. The court below sustained a demurrer to the

bill and dismissed it. This is not a case which concerns merely the private interests of two suitors. It is a matter where the public interest is involved. Railroad companies are incorporated by authority of law not for the promotion of mere private ends, but in view of the public good they subserve. It is the circumstance of public use which justifies the exercise on their behalf of the right of eminent domain in the taking of private property for the purpose of their construction. They have come to be almost a public necessity, the general welfare being largely dependent upon these modes of inter communication, and the manner of carrying on their operations. The specific execution of a contract in equity, is a matter not of absolute right in the party, but of sound discretion in the court, and in deciding whether specific performance should be enforced against a railway company, the court must have regard to the interests of the public: Raphall v. Railway Co., Law Rep. 2 Eq. Cases 37. The location of railroad depots. has much to do with the accommodation of the wants of the public. And when once established a change of affairs may require a change of location in order to suit public convenience. We cannot admit that an individual is entitled to call for the interference of a court of equity to compel a railroad company to

locate unchangeably its depot at a particular spot to subserve the private advantage of such individual. Railroad companies in order to fulfil one of the ends of their creation, the promotion of the public welfare, should be left free to establish and re-establish their depots wheresoever the accommodation of the wants of the public may require. To grant the relief asked for by the complainant, we would regard as against public policy, and he must be left for whatever remedy he may have to his suit at law for damages. The court below properly sustained the demurrer and dismissed the bill.

Supreme Court of Michigan.

BEAL v. CHASE AND THE ANN ARBOR PUBLISHING COMPANY. A contract by the vendor of a good-will, &c., not to engage in a special business within the state, so long as the vendee should continue in the said business, is not void as in restraint of trade, and may be enforced by a court of equity.

BILL in equity for injunction, &c. On appeal from Washtenaw Circuit Court. The facts sufficiently appear in the opinion of the court, which was delivered by

CAMPBELL, J.-There have been two appeals in this case. The last one was from a decree taken while the former was pending in the Supreme Court, and was made as an additional decree upon no new hearing, and upon the case as presented to the Circuit Court when the first decree was made. As the statute expressly declares that on a chancery appeal "all proceedings shall be stayed until otherwise ordered by the Supreme Court" (Comp. L. § 5181), a majority of us think the Circuit Court had no power to make the second decree, and that it should be reversed, but without costs, as the return was not duplicated and the second decree was made on the judge's own motion. We do not discuss the questions covered by it.

Upon the first decree the court have arrived at a substantial agreement, although not agreeing in all respects in the reasons on which their action will be based. They will content themselves with as brief a reference as will make their views intelligible.

The bill was filed to restrain the alleged violation of rights secured to complainant in connection with a sale to him by defend ant Chase of a printing and publishing business and certain copy