The only question presented by the record, of which this court has jurisdiction, is whether there is anything inconsistent with the constitution of the United States in the statute of Missouri of March 31, 1887, by which every railroad corporation owning or operating a railroad in the state is made responsible in damages for property of any person injured or destroyed by fire communicated by its locomotive engines, and is declared to have an insurable interest in property along its route, and authorized to insure such property for its protection against such damages.
It has been strenuously argued, in behalf of the plaintiff in error, that this statute is an arbitrary, unreasonable, and unconstitutional exercise of legislative power, imposing an absolute and onerous liability of the consequences of doing a lawful act, and of conducting a lawful business in a lawful and careful manner, and that the statute violates the constitution of the United States, by depriving the railroad company of its property without due process of law, by denying to it the equal protection of the laws, and by impairing the obligation of the contract previously made between it and the state by its incorporation under general laws authorizing it to convey passengers and freight over its railroad by the use of locomotive engines.
The argument that this statute is in excess of the power of the legislature may be the most satisfactorily met by first tracing the history of the law regarding the liability of persons for fire originating on their own premises and spreading to the property of others.
At common law, every man appears to have been obliged, by the custom of the realm, to keep his fire safe, so that it should not injure his neighbor, and to have been liable to an action if a fire, lighted in his own house, or upon his land, by the act of himself, or of his servants or guests, burned the house or property of his neighbor, unless its spreading to his neighbor's property was caused by a violent tempest or other inevitable accident which he could not have foreseen. Thirning, C. J., and Markham, J., in Beaulien v. Finglam, Y. B. 2 Hen. IV. p. 18; Anon., Cro. Eliz. 10; 1 Rolle, Abr. 1, 'Action sur Case,' B; 1 D'Anv. Abr. 'Actions,' B; Turberville v. Stamp (1698) Comyns, 32, 1 Salk. 13; Holt, 9; 1 Ld. Raym. 264; 12 Mod. 152; Com. Dig. 'Action upon the Case for Negligence,' A, 6; 1 Vin. Abr. 215, 216; 1 Bac. Abr. 'Action on the Case,' F (Am. Ed. 1852) p. 122; Canterbury v. Attorney General, 1 Phil. Ch. 306, 316-319; Filliter v. Phippard, 11 Q. B. 347, 354; Furlong v. Carroll, 7 Ont. App. 145, 159.
The common-law liability in case of ordinary accident, without proof of negligence, was impliedly recognized in the statute of Anne, passed within 10 years after the decision in Turberville v. Stamp, above cited, and providing that 'no action, suit or process whatsoever shall be had, maintained or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby; any law or usage or custom to the contrary notwithstanding.' St. 6 Anne (1707) c. 31 [58] § 7; 8 Statutes of the Realm, 795; St. 10 Anne (1711) c. 14 [24] § 1; 9 Statutes of the Realm, 684. By the statute of 14 Geo. Ill. (1774) c. 78, § 86, the statute of Anne was extended to 'any person in whose house, chamber, stable, barn or other building, or on whose estate, any fire shall accidentally begin.'
In modern times, in England, the strict rule of the common law as to civil liability in damages for fire originating on one's own land, and spreading to property of another, has been recognized as still existing, except so far as clearly altered by statute.
In Rex v. Pease (1832) 4 Barn. & Adol. 30, 1 Nev. & Man. 690, a corporation expressly authorized by act of parliament to establish a railway between certain points, and to use locomotive engines thereon, was held not to be liable to an an indictment for a nuisance by frightening horses traveling upon a highway parallel to the railroad.