Cook v. Milwaukee & St. Paul Railway Co.
36 Wis. 45
Wis.
1874
Check Treatment
Lyon, J.

The only negligence which the complaint imputes to the defendant, is the failure to put in the additional cattle guard; and the loss of, or injury to, the horses of the plaintiff is attributed solely to the absence thereof. The action is predicated upon the hypothesis that the defendant was under a legal obligation to put in the cattle guard, and hence is liable for all damages suffered by the plaintiff in consequence of its neglect to do so. Unless this hypothesis is correct, the complaint fails to state a cause of action against the defendant. The controll*49ing question is, therefore, Was the defendant under a legal obligation to put in such cattle guard ? The complaint does not allege that the defendant ever agreed to do so; but it is argued that this is a public duty, the performance of which is obligatory upon the defendant without any such agreement. It is quite true (and this court has so held), that the defendant, as lessee in. possession of the railroad, bolds it subject to all duties imposed on its lessor for the benefit and protection of the public. McCall v. Chamberlain, 13 Wis., 637. But the extent of such public duty in respect to cattle guards is fixed and determined by the statute on that subject, which does not require railway companies to construct cattle guards at farm crossings, but only at highway crossings. Tay. Stats., 1044, § 34; Laws of 1872, ch. 119, sec. 30.

The construction of the cattle guard in question not being a public duty, and the complaint failing to aver an agreement by the defendant to construct it, it is apparent that the defendant is under no legal obligation to do so, unless the agreement of its lessor in that behalf imposes such obligation. It is quite probable that the lessor of the defendant could have made a covenant to put in and maintain the cattle guard, which would run with the land and bind the defendant. But it is very clear that no such covenant is set out in the complaint. The agreement therein stated is purely a personal one, entirely wanting in most of the essential elements of a covenant which runs with the land. The Oshkosh & Mississippi River Railroad Company only assumes therein to bind itself, not to charge the land, or to bind its grantees or lessees by such agreement.

The failure of the defendant to put in the cattle guard being the only negligence imputed to it, and the defendant being under no legal obligation to do so, it follows that the complaint does not state facts sufficient to constitute a cause of action, and hence, that the demurrer thereto should have been sustained.

The order overruling the demurrer must therefore be re*50versed, and the cause remanded for further proceedings according to law.

By the Court — It is so ordered.