Page:North Dakota Reports (vol. 1).pdf/283

We are inclined to think, but do not so decide in this case, as it is unnecessary to do so, that the court would have been warranted in holding under the admissions in the answer, and in the absence of evidence to the contrary, that the right of way which the defendant owned was at least of the width which defendant might lawfully condemn for railroad purposes. But there was competent and uncontroverted evidence tending to show the width of the right of way at or near the point where the fire started, which the defendant was using for railroad purposes, and long had been using for such purposes. One Keeler, a witness for plaintiff, being on the stand, was asked: "Question. How much ground was the defendant using for a right of way through the section at that time? Answer. Well, I can certainly say that they used 300 feet, if not a trifle more.” The witness further testified that “he based this statement upon throwing out of dirt from their cuts, and from their taking in dirt from their fillings, and by their railroad-crossing sign-posts, and their mile posts, and a well they (the railroad) had dug, or attempted to dig, about fifty feet from the track on the east side of the track on the same section, and probably sixty rods north of the location of this fire. That summer, prior to September 21st—the date of the fire—I frequently saw the ground used for aright of way.” No attempt was made to contradict this testimony, but appellant’s counsel, in his brief, says, ‘The best evidence was the recorded title,” etc., and that no foundation was laid for what counsel calls “secondary evidence.” The admission of this testimony is assigned as error. We think the evidence clearly competent to prove the only question at issue upon this branch of the case, namely, as to the width of the right of way which defendant was using at and near the point where the fire originated. The practical question was and is whether, at the time the fire was thrown out by defendant’s train, it fell upon and ignited dry grass standing upon right of way then in use as such by the defendant. It is moreover perfectly clear to this court that defendant’s liability for the alleged negligence does not at all depend either upon its ownership, or its right to the possession of the strip of land upon which the fire originated. If at that time the defendant Was actually using the land for its