CHAPTER XIX.

FENCES.

SECTION I.

Upon whom rests the obligation to maintain fences.

4. And where that is assessed, and payment 18. It must appear the injury occurred by

8. Lessee of railway bound to keep up fences 24. Rule as to land-owner agreeing to main

9. Company bound to fence land acquired by 25. Company not responsible for defect of

*§ 127. 1. By the Railway Clauses Consolidation Act1 it is made the duty of the railways in England, before they use land for any of their purposes, to fence it, and make convenient passes for the owner, which, if the parties do not agree, are to be determined by two magistrates. Under this statute it has been held, that the railway is not excused from making the necessary accommodations to keep up communication, to the owner, between different parts of lands, intersected by the line of a railway, because these are not 'defined in the arbitrators' award of land damages. They are totally distinct things from the land damages.2 And where the jury, assessing land damages, also made a separate verdict for the expense of crossing the railway by a private way, it was considered that they exceeded their jurisdiction, and their proceedings were quashed.3

2. It is considered, in the English courts, that the expense of fences and crossings being imposed upon the railways by statute, perpetually, and the mode of enforcing its performance pointed out in the statute, it has no connection with the land damages, but is to be enforced under the statute, and land damages are to be appraised, upon the basis of that duty resting upon the rail

way.

3. But where the statute makes no such provision, the expense of fencing and making crossings are important considerations * in estimating damages for the land taken, and this expense should

1 8 and 9 Vict. ch. 20, § 40.. But in Kyle v. Auburn & Rochester Railw., 2 Barbour's Ch.. 489, the court declined to interfere by injunction, to compel the building of a farm-crossing, although the company assumed before the jury for assessing land damages, that such a crossing should be built by them, the plans showing no such crossing. It is said, under such circumstances, to be the duty of the land-owner to make necessary crossings, and that he is a trespasser for crossing the railway without them; and this should be so considered, in assessing damages for taking the land, and compensation made for such expense.

2 Skerratt v. The North Staffordshire Railw., 5 Railw. C. 166, per Lord Cottenham, Chancellor. See post, § 193, n. 3.

3 In re South Wales Railw. Co. v. Richards, 6 Railw. C. 197. So too where the land-owner stipulated with the promoters for certain watering-places and other conveniences, and to accept £5,000 for especial damage, and to withdraw thereupon opposition to the bill, it was held the duty to make suitable wateringplaces might be enforced by mandamus. Reg. v. York & N. Midland Railw., 3 Railw. C. 764; infra, §§ 128, 190, 191. The provision for fences, in the English statute, being a separate, independent, general provision, is enforced, altogether aside of the proceedings to assess land damages.

undoubtedly be borne by the company, in addition to paying the value of the land, for otherwise the land is taken without an equivalent. But the courts in most of the American States have resisted this view wherever it was practicable, more commonly upon some technical ground of presumption or inference, when, in fact, the omission of such an express provision in the charter or the general laws of the states was wholly the result of oversight in the legislatures. But it is refreshing to find some courts so far relieved from the trammels of mere technicality as not to feel compelled to sacrifice an obvious principle of justice to the shadow of a mere form. In a recent case in California we find an announcement upon this question which evidently comes from the right quarter, a sense of simple justice. It declares, if fences are rendered necessary for the protection of the crops of the land-owner by means of the construction of the railway through the land, the cost of such fences must be included in the compensation to be paid by the company,4 and this by necessary consequence must include a sum sufficient to indemnify the owner against the constantly accruing expenses of maintaining such fences. And the tendency of the more recent decisions is sensibly in this direction; and we might add, without offence, that in our judgment it is the only sensible direction the decisions could take, and we have always expected them to take such a direction in the end, however late it may come.5

4. And where in such circumstances the commissioners assessed the land damages, and a separate sum for building fences, and judgment was rendered in favor of the land-owner, for both sums, but the payment resisted by a proceeding in Chancery, on the part of the railway, and while this was still undecided, the company commenced running their engines, and the cattle of the occupier of the land strayed upon the track and were killed by the engines of the company, it was held, that the obligation to maintain the

4 Sacramento Valley Railw. v. Moffatt, 6 Cal. 74.

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5 Evansville Railw. v. Fitzpatrick, 10 Ind. 120; Same v. Cockran, id. 560; Same v. Stringer, 551.

Quimby v. Vermont Central Railw. Co., 23 Vt. 387; See also Vanderkar v. Rensselaer & Sara. Railw., 13 Barb. 390. But in the English Railway Acts, where the company is required to make crossings, where land is divided, and the mode of determining the nature of the crossings is to be referred to two justices, upon the application of the land-owner ("in case of any dispute ") it was held, that until the company have made a communication, a party whose

fence rests primarily upon the company, and until they have either built the fences, or paid the land-owner for * doing it, a sufficient time before to enable him to do it, the mere fact that cattle get upon the

land had been severed by the railway has a right to pass from one portion of his property to the other across the railway, at any point, and that the section requiring the owner to pass at such a place as shall be appointed" for crossing, means, "when such places shall have been appointed." Grand Junction Railw. v. White, 8 M. & W. 214; s. c. 2 Railw. C. 559. And where, at the time of appraising land damages, the land-owner, in the presence of the agents of the company, pointed out to the commissioner the place where he would have a farmcrossing, and no objection was made by the company, and the sum awarded was paid, but the company, in constructing their road, were throwing up an embankment at that point, and locating the crossing at a different place, where it would be inconvenient for the land-owner, an injunction was granted, until the company should either make a suitable crossing or compensate the land-owner. Wheeler v. Rochester & Sy. Railw., 12 Barb. 227; Milwaukee & Mis. Railw. v. Eble, 4 Chand. 72. It is here held, that the land-owner is entitled to include, in his damages, the expense of fencing, as incidental to the taking of the land. But the contrary is held in a very elaborate case in Iowa, Henry v. Dubuque & Pacific Railw., 2 Clarke, 288. But the argument of the court seems to us unsatisfactory and suicidal.

And where the railway at first contracted with the land-owner to build the fence for them at a specified price, but a controversy arising in regard to land damages, the commissioners reported a sum which was finally confirmed by the court, and an additional sum for the expense of building the fence, and the plaintiff took judgment and execution for this also, and subsequently built the fence, according to his contract with the company, and sued the company for the price, it was held that he could not recover, the former judgment having merged the contract, and imposed upon him the duty to build the fence, under the award and judgment. It was also held that the land-owner could not claim to recover any thing beyond the award for having built the fence, according to the original contract, which rendered it more expensive to him than it would otherwise have been. Curtis v. Vermont Central Railw., 23 Vt. 613; s. c. 1 Am. Railw. C. 258; see Lawton v. Fitchburg Railw., 8 Cush. 230.

And where the statute requires the company to make farm-crossings where they divide land, it is not proper for the jury, in assessing compensation to the land-owner, to include the expense of a bridge for the purpose of a farm-crossing. Philadelphia, Wilmington, and Baltimore Railw. v. Trimble, 4 Wharton, 47; s. c. 2 Am. Railw. C. 245.

In the case of Chicago & Rock Island Railw. v. Ward, 16 Illinois, 522, where the company covenanted to maintain fences upon land intersected by their road, and failed to perform the covenant, and crops were destroyed, it was held the company were liable for the value of the crops growing upon the land and destroyed, as of the time when fit for harvesting. This does not seem entirely in accordance with general principles upon this question. The case professes to go upon the authority of De Wint v. Wiltse, 9 Wend. 325. But see §§ 148, 156.

road from the land adjoining is no ground for imputing negligence to the owner of the cattle."

5. In some cases in this country it has been held that the railway and the adjoining land-owner are to defray equal proportions of the expense of maintaining fences, upon the principle of being adjoining proprietors, and being equally interested in having the fence maintained, unless the land-owner chooses to let his land lie in common, and in that case the company must be at the whole expense of fencing, as a necessary protection and security to their business.7

7 In the matter of the Rensselaer & Sar. Railw., 4 Paige, 553. In Northeastern Railw. v. Sineath, 8 Rich. 185, it is held that damages are not to be assessed for fencing through unenclosed land used for grazing. In a recent case in Kentucky, Louisville & Frankfort Railw. v. Milton, 14 B. Monr. 75, it is held, that where one grants the right of building a railway across his land, neither the land-owner nor the company are bound to fence adjoining the railway. If the land-owner suffer his cattle to run at large, as he may, if he choose to incur the risk, he cannot recover damages of the company for any injury sustained by them, unless it might have been avoided by the agents of the company, with due regard to the safety of the train and its contents. If such cattle, permitted to run at large upon the railway track, are killed accidentally by the train, when running at its customary speed, the owner cannot recover of the company.

The court here discountenance the notion that seems sometimes to have prevailed, that if the railway are in the right in running their train, and especially where cattle are trespassing upon the track, they may destroy them at will, without incurring any responsibility. And in regard to the case of New York & Erie Railw. v. Skinner, 19 Penn. State, 298, the court say: "This court is not disposed to sanction all the legal doctrines avowed in that opinion."

Railways are only bound to the use of such diligence, prudence, and skill, to avoid injury to cattle rightfully in the highway at a road-crossing, as prudent men exercise in the conduct of their own business. And as to cattle wrongfully upon the railway, unless the injury is caused wilfully, or through gross negligence, the company are not liable. Chicago & Mississippi Railw. v. Patchin, 16 Ill. 198; Great Western Railw. v. Thompson, 17 Ill. 131; Quimby v. Vt. Central Railw., 23 Vt. 387; Central Mil. Tr. Railw. v. Rockafellow, 17 Ill. 541; Railroad Co. v. Skinner, 19 Penn. St. 298.

In a late case in New Hampshire, White v. Concord Railway, 10 Foster, 188, it was held, that where the statute required railways to fence and maintain proper cattle-guards, cattle-passes, and farm-crossings, for the convenience and safety of the land-owners along the side of the road, provided they might instead settle with the land-owners therefor, and a railway divides a pasture, and a crossing is made, under the statute, the land-owner may let his cattle run in the pasture "without a herdsman," and that the company will be liable for their destruction while crossing the track from one pasture to the other, unless the