Gerke

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…