age was from three to four dollars per acre." This was error. The appellant proposed to prove by John Donaldson "that the locomotive engines of the appellant were provided with the best methods known for the prevention of fire, and that they were in good order and repair and skilfully managed at the time complained of." Part of the negligence charged was permitting sparks of fire to escape. In the case of The Indianapolis, etc., R. R. Co. v. Paramore, 31 Ind. 143, it was intimated that negligence ought not to be inferred prima facie, from the mere fact that sparks of fire escaped from the engine and burned adjacent property. ELLIOTT, C. J., on p. 147. But the later and better opinion is, that the burning of adjacent property, by sparks from a locomotive engine, is prima facie evidence of negligence in the company and their servants having the management of the engine, rendering it incumbent on them to show that proper precaution had been taken to prevent the escape of sparks. Addison Torts, 242. See also the authorities cited in Gagg v. Vetter, 41 Ind. 228. It is analogous to the case of an injury sustained by a passenger on a train, which has always been regarded as prima facie evidence of negligence in the company. The Pittsburgh, etc., R. R. Co. v. Williams, 74 Ind. 462 The Jeffersonville R. R. Co. v. Hendricks' Adm'r, 26 Ind. 228. The testimony of Donaldson had a tendency to rebut such prima facie evidence of negligence. The Pittsburgh, etc., R. R. Co. v. Nelson, 51 Ind. 150, on p. 154, citing Gagg v. Vetter, supra; Toledo, etc., Ry. Co. v. Wand, supra; Grand Rapids, etc., R. R. Co. v. Boyd, 65 Ind. 526. The court therefore erred in excluding said testimony. The foregoing conclusions render it unnecessary to consider the remaining causes for a new trial, which relate to the sufficiency of the evidence and the validity of the instructions given and refused. The judgment of the court below ought to be reversed and the cause remanded for a new trial. PER CURIAM. It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be, and it is hereby, in all things reversed, at the costs of the appellee, and this cause is remanded for a new trial, with instructions to permit the appellee to amend his complaint. ELLIOTT, C. J., and Woops, J., dissent from so much of the foregoing opinion as holds that the complaint was insufficient. See Note 2 Am. and Eng. R. R. Cas. 275. 8 A. & E. R. Cas.-46 SPEAR and another v. MARQUETTE, HOUGHTON AND ONTONAGON R. Co. (Advance Case, Michigan. October 18, 1882.) Persons who have authorized the use of a locomotive on their premises, and have known of its use and acquiesced in it, have no right of action for damage done to their property by fire set by sparks from such locomotive. ERROR to Marquette. M. H. Maynard, for complainants and appellants. CAMPBELL, J.-This case comes up on a retrial of the same issues referred to in a former decision of this court, reported in 44 Mich. 170. The damage sued for was for a loss by the burning of a warehouse and some hay in and near it, from fire set by sparks from a locomotive. We do not discover any material difference between the present record and the former one, so far as the rules of responsibility are concerned. The track on which the locomotive ran is on plaintiff's premises, and built for the convenience of such business as was done with them individually or as warehousemen. The only right the railroad company had was through a contract with plaintiffs. It appears that locomotives were not generally, if ever, used to bring cars onto the dock, as they were usually run down an inclined track. Cars to be taken to the road from the dock were drawn by locomotives. The locomotives used were, for reasons owing to the arrangements on the dock, required to be small ones, and the locomotive named the "Brickrod was the one generally used, and it was this one which caused the injury. The plaintiffs knew of its use, and there is nothing to indicate on this record that they did not approve it. Engines were not sent unless there were cars to be drawn off, and usually plaintiffs sent for them. Without dwelling on the facts which, as already stated, do not seem to us to introduce any new element into the cause, we think, as we held before, that the use of this engine was with the knowledge and acquiescence of the plaintiffs on their own premises, and that they cannot complain of what they have authorized. The judgment must be affirmed with costs. The other justices concur. See note 2 Am. and Eng. R. Cas. 275. HOUSTON & T. C. R. R. Co. v. Wм. C. MCKINNEY. (55 Texas Reports, 176. May 3, 1881.) The agent of a railway company, acting under a general power to procure a right of way for the railroad, does not have, as connected with or incidental to such a power, the right to designate and locate for his principals the depots along the line of road; and his agreement to locate a depot at a particular place, as a consideration for a deed to the company of a right of way, would not be binding on the company. An incorporated company cannot be called on to answer in damages, in its coporate capacity, for the false and fraudulent representations of its agent, unless it authorized the representations. A deed to a railway company which recited that, "in consideration of the enhanced value to be given and is contemplated to arise to my lands and other property by the location and building of the Houston & T. C. Ry., and for the further consideration of one dollar," and then proceeded to convey the right of way for the road over designated land, vested the right it purported to convey, notwithstanding fraudulent representations made outside the scope of his authority by the agent who received it. If the agent promised the location of a depot as a part consideration for the deed, parol evidence would not, in a suit against the company, be admitted to prove it, and the remedy of the grantor would be against the agent and not against the company for the deceit practiced. This case distinguished from Henderson v. R. R. Co., 17 Tex., 560. One who, by deed, grants a right of way over his land to a railway company, impliedly waives all right to damages not reserved in the deed, occasioned by the removal of timber or other obstructions situated in the line of the designated right of way. See statement and opinion for a petition in a suit against a railway company for damages, on account of alleged fraudulent representations by its agent, which was held bad on demurrer. APPEAL from Collin. W. C. McKinney brought this suit for the cancellation of a deed which he made, conveying the right of way over a certain tract of land to the appellant, on the allegation of fraudulent representations and undertakings of the appellant's agent, who solicited from him the deed, and was at the time acting as the appellant's agent to procure rights of way for its railroad; also for damages for the breach of the stipulation of the agreement, made as a consideration and as alleged sole inducement for giving the right of way without adequate compensation. Verdict and judgment for the plaintiff, cancelling the deed, and for damages in the sum of $2,750. The court decreed the land condemned to the defendant's right of way. McKinney, on the 16th day of April, A. D. 1872, executed and delivered to the appellant a deed, signed by himself and wife, of which the following is a copy: "THE STATE OF TEXAS. "Know all men by these presents: That for and in consideration of the enhanced value to be given and is contemplated to arise to my lands and other property by the location and building of the Houston & Texas Central Ry., and for the further consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, W. C. McKinney and Margaret McKinney, of the county of Collin and state of Texas, have granted, bargained, sold and released, and by the presents do grant, bargain, sell and release, to the Houston & Texas Central Ry. Co., a strip of one hundred feet width of land over the tracts of land particularly described as follows, viz.: A tract in Collin county known as a survey in name of S. C. Brantley, for six hundred and forty acres, except fifty acres out of the southeast corner now owned by Sarilda Dooley. "It is understood that all the timber on the land conveyed is reserved over and upon which the said company has built or may hereafter build its railroad, and also the right to have the same strip of land in width over and upon any other lands now owned or which may hereafter be owned by us in the state through which said railroad may be hereafter built, together with all and singular the rights, members, hereditaments and appurtenances to the same belonging, or in anywise incident or appertaining. To have and to hold, all and singular, the said premises unto the said Houston & Texas Central Ry. Co. or its assigns forever. "And for the consideration aforesaid, as herein set forth, we do hereby grant to said company such earth, material and rock as may be found on our lands herein conveyed which may be required for the construction of said railroad, and we do hereby grant to said company a full release from all claims against said company for damages that may be sustained by their work in the construction, and for the right of way of said railroad over any of the said lands. This 16th April, 1872. (Signed) "WM. C. MCKINNEY, The deed was acknowledged and recorded. The appellant built and constructed the line of its road over the tract of land without any objection. McKinney alleged that "one Cummins, who was at that time the agent of defendant, for the purpose of procuring the right of way for their said railroad, assured him (appellee) that if he would make said deed to defendant (appellant) that defendant would establish and erect a depot within one and a quarter miles of the said town of Mantua; accordingly plaintiff (appellee), relying on the assurances of defendant's (appellant's) said agent that defendant would establish said depot as aforesaid, did, on or about the 16th day of April, A. D. 1872, make and deliver" said deed. That "the real consideration, though not expressed therein, was that defendant would establish and erect a depot in Collin county with one and one-half miles of said town of Mantua, on the line of defendant's railway. Plaintiff further represents that the representations of defendant's said agent, as heretofore stated, were fraudulently made, with a view to induce plaintiff to make a deed to defendant to the right of way over his said land. That plaintiff put full trust and confidence in said representations, believed them to be true in every particular, that said agent had full authority to make them, and that defendant would ratify said agreement between plaintiff and said Cummins, and that but for the representations so made to plaintiff, as heretofore stated, he would never have made the deed to the right of way over said tract of land." That "said deed was prepared by said agent, and said stipulations and conditions designedly left out of said deed for the purpose of defrauding plaintiff out of his said land. That plaintiff was without counsel and unadvised as to the legal effect of said deed." That "defendant, though often requested, has failed and refused to establish a depot within one and one half miles of the town of Mantua, but have long since refused to do so; and have in fact established a depot at Van Alstyne, in Grayson county, a distance of two and one half or three miles from said town of Mantua." "That defendant, in constructing said road, cut down and destroyed a bois d'arc hedge about eighty rods in length, the property of plaintiff, of the value of $300." "The plaintiff alleged that he had sustained damages by reason of the construction of said railway over his tract of land in the sum of $4000," for which he sued. To this the defendant filed a general demurrer and denial, and pleaded specially, "that plaintiff did, on the 16th day of April, A. D. 1872, make, execute and deliver to defendants, as alleged in his petition, he being then and there joined by his wife, Margaret McKinney, a deed to the right of way over and upon the tract of land described in his said petition, one hundred feet in width, thereby releasing to defendants all damages that might be sustained by them in their work in the construction of their road over and upon said land; said deed was made, executed and delivered for a valuable consideration, and is herewith filed, marked A, and made a part hereof. Wherefore they say that plaintiffs are estopped. "Defendants further allege that W. F. Cummins was not at the time alleged in plaintiff's petition, nor ever was, their agent, authorized to locate and establish depots on the line of their said road, or enter into contracts with any person for the location or establishment of depots on said line of road. And if said Cum |