they are not bound to do so, but the common-law duty of keeping one's cattle at home rests upon the land-owner. And this view is probably consistent, in principle, with the cases where such a duty is held to result from the appraisal of land-damages, subject to the expense of building fences being borne by the company, or where the assessment specifically includes the expense of fencing, and that has not been paid.

And in the Irish courts the company is only bound to erect such accommodation works for the benefit of the land-owners as are a compliance with the specifications in the award. This is true even where the railway crosses a private road over a farm in the right of some third party as lessee of the farm obliquely, * and the award adjudicating the claim of such lessee specified only a crossing over the railway as a "level crossing" at a given point, and the company gave a crossing at right angles with the road, which did not connect the termini of the road, and gave no access to it; it was nevertheless held that this was a compliance with the award. This is certainly not a fair construction of the award, as applicable to the subject-matter; and it does not require any gift of prophecy to foretell that the doctrine of

train, or in some other manner, to secure the safety of the passenger. That is their paramount duty. To enable them to perform it the law entitles them to a clear track. 7 Harris, 298; 12 id. 496."

8 Hurd v. Rut. & Bur. Railw., 25 Vt. 116, 123; New York & Erie Railw. v. Skinner, 19 Penn. St. 298; Clark v. Syra. & Utica Railw., 11 Barb. 112; Dean v. The Sullivan Railw., 2 Foster, 316; A. & S. Railw. v. Baugh, 14 Ill. 211. Where, upon appeal from the first appraisal of land damages, where the erection of fences had been specified, that was vacated, and the new appraisal made no such requirement of the company, it was held that the presumption was, that the whole damages were appraised in money, and the company were not bound to build fences. Morss v. Boston & Maine Railw., 2 Cush. 536; Williams v. New York Central Railw., 18 Barb. 222. It seems impossible to estimate damages for taking land for the use of a railway, without taking into the account the expense of fencing. Henry v. Pacific Railw., 2 Clarke, 228; Mil. & Mis. Railw. v. Eble, 4 Chandler (Wis.), 72; Northeastern Railw. v. Sineath, 8 Rich. 185; Matter of Rense. & Sar. Railw., 4 Paige, 533. And those cases which hold the company not bound to fence, unless required to do so by statute or contract, go upon the presumption that they have already paid the expense of fencing in the land damages. See Baltimore & Ohio Railw. v. Lamborn, 12 Md. 257; Mad. & Ind. Railw. v. Kane, 11 Ind. 375; Stucke v. Milw. & Miss. R. Co., 9 Wisc. 202; Richards v. Sacramento Valley R. Co., 18 Cal. 351.

9 Mann v. Great Southern & Western R., 9 Irish Com. Law R. 105.

the case will not be followed in this country, and, with deference be it said, it ought not to be followed anywhere.

7. And in some of the states the rule of the common law, in regard to the duty resting upon the owner of domestic animals to restrain them, has not been adopted so as to charge the owner with negligence for suffering them to go at large.10

8. But it is held, that where the statute imposes upon the company the duty of maintaining fences and cattle-guards at farm-crossings, and provides that until such fences and cattleguards shall be duly made the corporation and its agents shall be liable for all damages from such defect, this renders a lessee of the road liable for injury to cattle caused by his operating it without proper cattle-guards at farm-crossings.11

*9. A general statute, requiring fences to be maintained by railways upon the sides of their road, applies to land acquired by purchase as well as to that taken in invitum.12

10 Kerwhacker v. C. C. & Cincinnati Railw., 3 Ohio N. S. 172. In such cases the company are bound to use reasonable care not to injure animals thus rightfully at large. Ib.; C. C. & Cincinnati Railw. v. Elliott, 4 Ohio N. S. 474. If the owner is to be charged with remote negligence in suffering his cattle to go at large, under such circumstances, and the servants of the company are guilty of want of care at the time of the injury, which is the proximate cause of it, the company are still liable. Ib.; Chicago & Miss. Railw. v. Patchin, 16 Ill. 198; Ind., &c. Railw. v. Caldwell, 9 Ind. 397.

11 Clement v. Canfield, 28 Vt. 302. And the same rule applies to a company running its cars over another company's line by arrangement between the companies. If the road is not properly fenced, the company running the trains by which the damage is caused will be responsible, although it be the default of the other company, for which that is also responsible to the party injured. Illinois Central Railw. v. Kanouse, 39 Ill. 272. An order upon a railway for making farm accommodations must specify the time within which they shall be made. Keith v. The Cheshire Railw., 1 Gray, 614. And where the act allowing a railway company to lease its road is upon the express condition that it be not thereby exonerated from any of its duties or liabilities, this must include the maintaining of fences. Whitney v. Atl. & St. Law. Railw., 44 Maine, 362. Where a railway company permits its cattle-guards to remain filled with snow, so that cattle which have strayed upon the highway without any negligence on the part of the owner pass over such guards, and in consequence are injured by a passing train, the company are liable for the damages. Donnigon v. Ch. & N. W. Railw. Co., 18 Wisc. 28.

12 Clarke v. The Rochester, L. & N. F. Railw., 18 Barb. 350. A fence built in zigzag form of rails, half the length upon the land taken for the railway, and half upon the land of the adjoining proprietor, is a compliance with the statute

10. And the statute, requiring farm-crossings "for the use of proprietors of land adjoining," has no reference to the quantity of land to be accommodated, but only that the crossing must be useful.12

11. Where the statute requires the company to erect, at farmcrossings, bars or gates, to prevent cattle, &c., from getting upon the railway, and the land-owner who is entitled to such protection refuses to have such bars or gates erected, or requests the company not to erect them, or undertakes to erect them himself, he cannot maintain an action against the company for not complying with the statute.13 A court ofquity will not decree requiring the fence to be built upon the side of the road. Ferris v. Van Buskirk, 18 Barb. 397. And where the statute provides that, upon certain proceedings, railway companies may be compelled to provide farm-crossings and cattle-passes for the owners of land intersected by the company's road, and no such proceedings have been taken, the company are not liable to an action for damages resulting from the want of necessary farm-crossings and cattle-passes, unless it appears that the company had contracted to build them. Horn v. Atlantic & St. Lawrence Railw., 35 N. H. 169; s. c. 36 id. 440. Where the railway company contract to build fences and farm-crossings, this obliges them to erect bars or gates at such crossings, as required by statute. Poler v. N. Y. Central Railw., 16 N. Y. Court of Appeal, 476.

13 Tombs v. Rochester & Syracuse Railw., 18 Barb. 583. But where the statute requires the commissioners to prescribe the time when such works are to be made," and the owner has the right, by statute, to recover double damages, "by reason of failure to erect the works," and the commissioners failed to prescribe the time, no action will lie. Keith v. Cheshire Railw., 1 Gray, 614. When the statute requires fences to be maintained by railway companies, it must be done before they begin running trains. Clark v. Vermont & Canada Railw., 28 Vt. 103. And in Gardiner v. Smith, 7 Mich. 410, it was held to attach as soon as the company have possession of the land for construction. Since the decision of the case of Clark v. Vt. & Canada R., supra, the same court held, that during the construction of a railway the company, in such case, were bound, either by fences or other sufficient means, to protect the fields of land-owners adjoining the railway. And whether the company have used the proper precautions to prevent the escape of the land-owner's cattle or the intrusion of other cattle, during such construction, is a question of fact, in each particular case to be determined by the jury. Where the contractor for building a railway took away the fences in course of construction, and the sheep of the land-owner escaped thereby and were lost, he was held responsible for the loss. Gardiner v. Smith, 7 Mich. 410. And it will make no difference that the land-owner turned the sheep into the lot after the land was taken possession of by the contractor, and he was constantly throwing down the fences to carry forward the work. Ib. Holden v. Rut. & Bur. Railw., 30 Vt. 297. But a railway company cannot fence their road by means of willows set upon the line of the land

specific performance of a covenant by a railway company to maintain and keep in repair the cattle-guards on the line of plaintiff's land.14 Nor will the court of chancery, upon any general right, direct that farm-crossings, agreed to be built by a railway company, shall be made under its direction, or at its discretion.15

* 12. Railways are not bound to maintain fences upon their roads so as to make them liable to their own servants for injuries happening in consequence of the want of such fences. And where the statute makes them liable for all injuries done to cattle, &c., by their agents or instruments until they fence their road, the liability extends only to the owners of such cattle or other animals, and this liability is the only one incurred.16

13. Where the statute makes railways liable for cattle killed by them without reference to their negligence, all that is necessary to entitle the party to recover is to show the fact that the cattle were killed by the company and that he was the owner.17

14. And where it is the duty of the company to fence the land adjoining their road, and they omit to do so, whereby cattle escape upon the track and are killed, they are liable in damages without any proof of care on the part of the owner to restrain them.18 And evidence of notice to the owner that the animal had escaped two or three times before and had been upon the track, is inmaterial.18 But where the duty of maintaining fences is upon the land-owner, and cattle escape and are killed * upon

taken, and which in growing will injure the adjoining land by the extension of their roots, there being no controlling necessity of fencing in that mode. The company were accordingly enjoined. Brock v. Conn. & Pass. R., 35 Vt. 373.

14 Columbus & Shelby Railw. v. Watson, 26 Ind. 50.

15 Darnley v. London, Chatham & Dover Railw., Law. Rep. 2 H. Lds. 43. 16 Langlois v. Buffalo & Rochester Railw., 19 Barb. 364. But in McMillan v. Saratoga & Wash., 20 Barb. 449, it is conceded the company would have been liable to the representative of their engineer, who was killed by the train running upon cattle which came upon the track through defect of fences, which it was the duty of the company to maintain, if they had been shown to have had actual knowledge of such defect before the injury. See post, § 131.

17 Nashville & Ch. Railw. v. Peacock, 25 Alabama, 229. See also Williams v. New Albany & Salem Railw., 5 Ind. 111; Lafayette & Ind. Railw. v. Shriner, 6 Ind. 141. In this case it was held, that such a statute had no reference to the case of cattle killed at a road-crossing, as that was a place which could not be protected either by fences or cattle-guards.

18 Rogers v. Newburyport Railw., 1 Allen, 16.

1

the track, the company are not liable without proof of due care on the part of the owner to restrain them.19 The statute, requiring railways thereafter constructed to fence their roads on both sides, does not apply to a road in the process of construction at the date of the act.19

The statute, requiring railways to fence their roads, and making them liable for injury to cattle without regard to the negligence of the owner, or his being an owner of adjoining land, is a police regulation.20 But this liability does not extend to animals injured by fright.21

15. Railway companies are not liable for injuries to animals at highway crossings, although the crossing had been abandoned by the public for two years and the highway changed, it not appearing to have been vacated in the mode prescribed by statute, so as to justify the company in fencing their track across it.22

16. Railway companies in England are not held responsible for injuries to cattle transported to their stations, in consequence of injury by escaping upon the track through defects of the fence about the cattle-yard; nor for the cattle being frightened by one of the porters of the company coming out of the station into the cattle-yard, having a lantern, such as was ordinarily used, in his hand; it being no evidence of negligence on the part of the company's servants.23 It was considered here that the cattle had been delivered to the plaintiff, and it was his fault, since he knew the yard was not fenced, and had himself pronounced it an unsafe place, not to guard against their escape.

17. It appeared in one case 24 that the plaintiff's horse had es

19 Stearns v. Old Colony & Fall River Railw., 1 Allen, 493.

20

Indianapolis & C. Railw. v. Townsend, 10 Ind. 38; Jefferson Railw. v. Applegate, id. 49; Ind. & C. R. v. Meek, id. 502; Jeff. Railw. v. Dougherty, id. 549.

21 Peru Railw. v. Haskett, 10 Ind. 409. And the company are not liable for cattle killed in the highway without their fault, where the track of the road was fully fenced. Northern Ind. R. v. Martin, 10 Ind. 460.

22 Indian. Railw. v. Gapen, 10 Ind. 292.

23 Roberts v. Great Western Railw., 4 C. B. (N. S.) 506.

24 Holden v. Rutland & Burlington Railw., 30 Vt. 297. Where the plaintiff had knowledge at evening that his fence was in danger of being carried off by a flood, and knew his cattle would in consequence be liable to come upon the railway track, and refused to remove them from the pasture, and before morning the fence was removed, and the cattle came upon the track and were killed by a