39 N.H. 53 | N.H. | 1859
This action is brought to recover damages which the plaintiff claims to have sustained to his lands adjoining the track of the defendants’ l’ailroad, by reason of the neglect of the defendants to erect and maintain sufficient fences between their railroad and those lands. The report of the commissioner finds the damages to have been occasioned by the ravages of cattle permitted by their owners to run at large upon the public highway, and which escaped from the highway upon the defendants’ railroad, and thence into the plaintiff’s rye field, one of the tracts
It is quite clear, upon the authority of numerous decisions in this State as well as elsewhere, that the cattle mentioned by the commissioner were wrongfully upon the highway, and -wrongfully upon the defendants’ railroad; and therefore, so far as the damages to the rye field are concerned, the case distinctly raises the question, whether or not a railroad borporation is responsible for the damages occasioned to the owner of lands adjoining their road, by the depredations of cattle wrongfully upon their track, and escaping therefrom into the lands of such adjoining owner, in consequence of their neglect to erect and maintain sufficient fences between their railroad and those lands.
As respects the damages to the plaintiff’s pasture, we are aware of no principle on which, under the state of facts found by the commissioner, the plaintiff can fairly claim to compel the defendants to pay him the amount thereof. The commissioner not only fails to find that the cattle committing the injury ever entered the plaintiff’s pasture from the defendants’railroad, but he does expressly find that they would most naturally thus enter directly from the highway, and not by passing first over the defendants’ railroad. The inevitable conclusion, therefore, from the report of the commissioner, would seem to be, that the damages to the pasture were committed by cattle which their owners suffered to run at large in the public highway, and which gassed directly from” that highway upon the plaintiff’s land, so that the neglect of the defendants to erect and maintain sufficient fence between their railroad and this portion of the plaintiff’s lands, in no way, directly or indirectly, contributed to the injury there sustained by the plaintiff!
In relation to the damages to the rye field, as before suggested, the simple question is, does the obligation of
At common law the proprietor or tenant of land was not obliged to fence it. Every man was bound to keep his cattle upon his own premises at his peril, and he might do this in any manner he chose. Dovaston v. Payne, 2 H. Black. 527; Rust v. Low, 6 Mass. 90, 99; Jackson v. Rutland and Burlington Railroad, 25 Vt. 157, 158; Wells v. Howell, 19 Johns. 385; Man. & Lincolnshire Railway v. Wallis, 25 Eng. L. & E. 373; Morse v. Rutland & Burlington R. R., 27 Vt. 49; Lafayette & Indiana Railroad v. Shriner, 6 Porter 141; Woolson v. Northern Railroad, 19 N. H. 267; Indiana & Cincinnati R. R. v. Binney, 8 Ind. 402.
It has long been well settled, that where the owners of adjoining lands are bound by prescription, agreement, or the provisions of a statute, to maintain partition fences, they are obliged to maintain them only against animals rightfully upon the adjoining closes, and not against cattle trespassing thereon. Same authorities cited above, and also Lord v. Wormwood, 29 Maine 282.
So, too, where the owner of land is obliged by prescription or statute to maintain a fence against a highway, he is obliged to maintain it only against cattle rightfully upon the way. Same authorities, and Stackpole v. Healey, 16 Mass. 33.
These principles have been repeatedly affirmed by the courts of this State, [Avery v. Maxwell, 4 N. H. 36; York v. Davis, 11 N. H. 241; Page v. Olcott, 13 N. H. 399,] and they seem to us as applicable to railroad corporations, con
The question before us has, however, as we think, been substantially determined in several reported decisions in this State, as wTell as elsewhere.
In Woolson v. The Northern Railroad, 19 N. H. 267, it was held that a railroad corporation was not liable for damages done by their engines and cars to cattle which escaped from the highway upon the railroad track, because
In Towns v. The Cheshire Railroad, 21 N. H. 363, it was expressly decided that railroad corporations were not bound under the statute to make or keep fences, except against the lands of adjoining owners, and cattle rightfully thereon, and not against cattle escaping from, a highway and trespassing upon the track of the railroad.
In Cornwall v. The Sullivan Railroad, 28 N. H. 161, it was determined that railroad corporations were required by statute to maintain sufficient and lawful fences on the sides of their roads, for the protection of the adjoining land-owners and all those who were rightfully in possession of the adjoining lands, except where they had settled with and paid those adjoining owners for building and maintaining such fences, but that they were under no obligation at common law, or by statute, to fence their roads for the benefit of trespassers.
The like doctrine has been held in other jurisdictions. Thus, in Perkins v. The Eastern Railroad, 29 Me. 807, it was decided that railroads were not bound under the statute of Maine, similar to that of New-IIampshire on the same subject, to build and maintain fences on the line of their road through common and unenclosed lands. So in Picketts v. The East & West India & Birmingham Junction Railway, 12 Eng. Law & Equity 520, it was held that the defendants were not liable to maintain fences against cattle trespassing on a close adjoining their road. In this last case it was expressly said, by Chief Justice Jervis, in delivering the opinion of the court, that the act of Parliament requiring railroad companies to fence their roads, had imposed upon them just the same liability as by law existed upon the owners of adjoining lands in regard to maintaining partition fences between themselves, and no other. In this opinion all the other judges concurred. And in Hurd v. The Rutland & Burlington Railroad, 25 Vt. 124, it
We have, therefore, no hesitation in holding, that, under the existing statutes of this State, railway companies are only bound to maintain fences on both sides their track for the benefit of the owners and rightful occupants of adjoining lands, to prevent the cattle of such owners or occupants from escaping from the adjoining lands upon the track of their roads and there getting killed, or wandei’ing astray, and to protect the crops, grass, herbage and other productions of such adjoining lands, from the depredations of animals rightfully upon the railroad track. If, for example, the cattle rightfully upon an adjoining close should escape upon the railroad track, by reason of the neglect of the railroad to construct and maintain a sufficient fence between their track and such adjoining close, they would be rightfully there, and the railroad corporation responsible not only for any injury done them by their own trains, but for any damages done to the crops of any other adjoining close into which they might escape by reason of like negligence of the corporation in neglecting to erect and maintain a lawful and sufficient fence between their road and such other adjoining close, as well as for any loss or damage happening by reason of such cattle straying upon the highway or elsewhere. But railroad corporations are not bound, any more than individual landowners, to erect and maintain fences against cattle -trespassing either upon lands adjoining their roads or upon
. Entertaining these views, we are of opinion that the plaintiff cannot sustain his action for any portion of the damages claimed by him, and there must be judgment for the defendants upon the commissioner’s report.
Judgment for the defendants.
