100 Ind. 301 | Ind. | 1885
Upon each side of, and upon the line of its right of way, which extends north and south through appellant’s farm, the appellee has maintained fences, except a space in front of appellant’s house on, the east side of the track. In front of the house is a piece of ground seventy-five feet square, outside of the right of way proper, on all sides of which, except that on the line of appellee’s right of way, there are and have been secure fences. Appellant has owned the farm for seventeen years. He built and has maintained the fences around the above named piece of ground since he has owned the farm. He got the farm from his father. Whether or not this piece of ground was fenced in the manner it now is while the father owned the farm, is not certain from the evidence. In the fence on the west side of the track, and in the fence surrounding the above named piece of ground, appellant has maintained gates. Through these gates, and over a crossing, prepared by appellee, he passes, and has passed from one side of his farm to the other, and in reaching a highway leading to Vincennes and other places. These, or similar gates, and the crossing, were used by the father. In short, that crossing has been there since the railroad was constructed many years ago. Whether the father had contracted with the company to maintain the fence around the square piece of ground, is not shown. Appellant has maintained those fences and the gates, as he states, without any express
It is not shown how the hogs got upon the right of way, neither is there anything but conjecture as to how the colt got upon the right of way, as there is no evidence that the gates were left open by any one at or near the time of the killing. The case, however, is submitted upon the theory that some one left the gate open, which is in the fence around the-square piece of ground, and that the colt passed through it, and thence to the railroad. The contention of appellant is-that the square piece of ground was not fenced by the company, and that it did not maintain cattle-pits at the crossing, and hence is liable for the value of the animals killed, under the statute which requires railroad companies to fence their tracks. The court- below held against him; He has appealed, and asks a reversal of the judgment upon the evidence. The-question is, Was the railroad so securely-fenced by the railroad company as to defeat appellant’s .action ? It makes no difference whether the fences are built.upon the company’s own ground, or over upon the land of an adjoining proprietor ; if there by his consent, the road worild still be fenced. If, then, by the consent of appellant, the company had built fences around the square piece of ground in.front of his house,, as they were built by him, the railroad would have been fenced just as effectually as if built upon the line dividing appellant’s land and the right of way. The fact that the fences were thus built, with the other circumstances,, shows that this;
This exoneration from liability under such circumstances was at one time extended to all persons. It has, in later •cases, been confined to the parties agreeing to keep up the fences. As to them it has never been questioned, but many times approved and reaffirmed. Bellefontaine R. W. Co. v. Suman, 29 Ind. 40; Indianapolis, etc., R. R. Co. v. Petty, 25 Ind. 413; Fort Wayne, etc., R. R. Co. v. Mussetter, 48 Ind. 286; Cincinnati, etc., R. R. Co. v. Ridge, 54 Ind. 39; Indianapolis, etc., R. W. Co. v. Thomas, 84 Ind. 194; Louisville, etc., R. W. Co. v. Shelton, 94 Ind. 222.
There is no good reason why this agreement to keep up fences may not be an implied agreement, so as to defeat an •action against the company under the statute in relation to fencing. It was held in the case of The Indianapolis, etc., R. R. Co. v. Shimer, 17 Ind. 295, as stated in the syllabus, that “Where a railroad company has securely fenced its road, except at certain places where the owner of the land is permitted to erect draw-bars or gates for his own convenience in crossing said road, and by reason of the neglect of ■such land-owner to maintain such bars or gates, his stock
We think that the judgment of the court below is right upon the evidence, and it is therefore affirmed with costs.