Fahn v. Reichart

8 Wis. 255

• Court: Wisconsin Supreme Court
• Decided: June 15, 1859
• Status: Published

Opinion

By the Court,

Cole, J.

We do not think that the plaintiff in error could have been prejudiced by the charge of the circuit court. For suppose the evidence had been clear and incomestible, that the defendant in error by himself or servants, had set fire to the logs and brush upon his own land, and that the fire had been communicated to the plaintiff’s barn, and destroyed it; still the action might not be sustained. A man may burn logs and brush upon his own land. The act is not unlawful or necessarily attended with injurious consequences to his neighbors. So the jury would not only have to find that the defendant caused the fire to be set there, but also that there was negligence or carelessness in putting the fire at that place at the time. An action will not lie for an injury resulting from doing a lawful act in a lawful manner. “ A possible damage to another in the cautious and prudent exercise of a lawful right is not to be regarded, and if a loss is the consequence, it is damnum absque injuria” Clark vs. Foot, 8 J. R., 421; Pouton vs. Holland, 17 id., 92; Thurston vs. Hancock, 12 Mass. 220.

The defendant could not be held answerable in damages for the reasonable and proper exercise of a lawful right, attended by a cautious regard- for the rights of others, when there is no neligence, unskillfulness or malice in the act done. The charge seems to be predicated upon the idea that the defendant would be liable if he set on fire the brush and log heaps upon his own land, and the plaintiff’s barn was burned from sparks and cinders from this fire thus existing. But if the defendant was not guilty of negligence in the care and management of the fire set by him, he would not be liable. So we think the charge of the court could not have prejudiced the plaintiff in error.

The judgment of the circuit court must be affirmed.