Page:North Dakota Reports (vol. 1).pdf/282

 complained of was thrown out from one of defendant’s passing trains, and ignited in dry grass about one rod east of and to the leeward of the track, was, though purely circumstantial, legally competent, and, not being disputed, was sufficient to warrant the jury in finding that the defendant’s engine started the fire. Karseh v. Railroad Co., 29 Minn. 12, 11 N. W. Rep. 122, and authorities there cited. But defendant’s counsel claims that there is no competent evidence in the record that any fire which was emitted from the passing train fell upon or caught in grass standing upon the defendant’s right of way, and that there is no competent evidence to show that defendant owned or used a right of way of any width. It is admitted by the answer that, at all times mentioned in the complaint, the defendant owned the line of railroad in question, and operated the same by the use of the usual locomotive engines and rolling stock; and defendant’s own witnesses state that defendant ran trains over said railroad on the day of the fire, and that a train passed the point where the fire started about the time when other testimony shows that the fire sprang up. But the complaint alleges, in substance, that, at the time in question, the defendant owned and used a right of way about fifty feet in width, on each side of its said railroad, and that the fire which did the damage started upon such right of way. This averment of the complaint is denied, and, except so far as it may be admitted by the answer, the burden rests with the plaintiff to establish its truth; but, as we have seen, in its answer to the complaint, the defendant admits of record that, at all times mentioned in the complaint, it was the owner of the railroad in question. This is, in effect, an admission that it owns the right of way, inasmuch as a right of way is inseparable from, and constitutes an essential part of, every railroad. This admission takes the question of ownership out of the case, and leaves only the question of the width of defendant’s right of way at issue. Appellant’s counsel concedes that, under the statute, defendant might lawfully condemn for right of way purposes a strip of land fifty feet wide on each side of its track, but insists upon the fact that plaintiff offered no written or documentary evidence of any condemnation of or of title to the right of way in question.