After stating and explaining the pleadings, and nature of the action, substantially charged the jury as follows:

By statute law a part of the Sacramento river is declared navigable. At the point where plaintiff’s property was situated, at the time of its alleged destruction, it was and is a navigable stream and public thoroughfare, and defendants, at any and all times, had a legal right to enter and navigate it with steam, or other boats, for purposes of trade and carriage, or for such other as they are ordinarily used.

Steam is now used as a common motive power; science and art have adapted and applied- it to propelling boats and machinery, and its value and use, at the present age, is too common and necessary to be questioned or dispensed with.

As an ordinary rule, an action lies for any act done by a man in using his own property, whereby the rights of another are injured, unless such act be altogether inevitable, and beyond his control. Where fire, used to generate steam, is likely to be destructive to the property of another, it is necessary that the owner of the boat using it, should adopt the ordinary precautions, if any there be, which the disclosures of modern science and invention have shown necessary and efficient to prevent damage, where damages may probably occur.

*279 The same precautions may not be necessary to a steamer navigating the ocean, that would he required to rail road locomotives, or boats navigating narrow internal streams, through agricultural or thickly settled regions. Then again, in case of a low-pressure engine, burning coal, the same precautions, care and diligence may not be required as there would be if the high-pressure engine, burning wood, was used.

The first question for the jury to pass upon is—did the defendants, by their agents, employed in navigating the steamboat "Swan,” and while in the act of so doing, by sparks discharged from the smoke pipes thereof, fire and destroy the property of plaintiff?

If, upon the evidence, you find affirmatively on this proposition, you should inquire and determine, whether or no, with ordinary care and diligence, the fire might have been prevented ? Is it immediately attributable to the carelessness or negligence of defendants, or their agents, either in regard to the construction or management of the boat, or its appurtenances ? Or was it inevitable and beyond their control ?

The mere fact that plaintiff’s property was destroyed, and that he has sustained damage, in consequence of the act of defendants, does not, of itself, make them liable, or entitle plaintiff to recover; to give plaintiff that title, two things must concur, damage to himself and a wrong committed by the defendants.

Defendants were engaged in a legal employment, and if, as a consequence, damages have resulted to plaintiff, they cannot he held liable merely because they have enjoyed a right accorded to them by the law of the land; something more than this must be shown.

Navigable rivers, like public roads, unless their enjoyment is restricted by law:, are free and open to all for ordinary purposes of conveyance and transportation j and in addition to showing loss and damage to his crops, &c., occasioned by the defendants, the onus is upon plaintiff to show it has been occasioned by defendant’s culpable negligence and carelessness.

If plaintiff has failed in this, the defendants are entitled to your verdict.

If you should find that the fire was occasioned by the defendants, in the manner alleged, and that it was not inevitable and beyond the control of defendants, hut owing to their culpable negligence and carelessness, plaintiff is entitled to recover such damages as will cover the actual loss, which, upon the evidence, you find he has sustained.

Verdict for plaintiff, $9,200.