22 N.H. 316 | Superior Court of New Hampshire | 1851
At common law, owners of adjoining lands owe each other no duties, and are subject to no obligations to maintain fences. By our statute, they are bound, if the lands are improved, to maintain the partition fence equally. Rev. Stat. chap. 136. As owners of land, where .they own their track, railroad companies are subject to the same liabilities as other owners. But these statute provisions do not apply to such corporations, where they own nothing in their track, but an easement, a right of way merely. In such a case, neither the com
The question is of great importance, both to the landowners and to the railroad companies; since upon its decision depends, in a great degree, the liability of the one or the other, for injuries to the animals and crops of the land owner, and to the engines and cars of the railroads, and to the persons and property borne upon the road, arising from such defects of the fences. In construing the statutory provisions, we are to regard the state of the common law, and the evils to be remedied, and the mischiefs to be guarded against by legislation, to which we have adverted, and the previous enactments on the subject. By the statute of 1840, (p. 434,) chap. 498, $ 4, it was made “ the duty of every railroad corporation to erect, or cause to be erected, and keep, or cause to be kept, in good and sufficient repair, a proper and sufficient fence on each side of the track,” &c.; and this provision was inserted in the report of the Committee of Revision. It w'as omitted, while the statutes were passing through the legislature, and the existing provision inserted in its stead. The section is as follows : iC If any railroad corporation shall neglect to keep a sufficient and lawful fence on each side of -their road, any person against whose land such fence is insufficient, may notify the agent of such corporation thereof, and if such fence shall not be made sufficient within twenty days after such notice, the owner may make or repair such fence, and may thereupon recover of such corporation in an action of assumpsit, double the amount necessarily expended in making or repairing the same, as aforesaid; provided, however, that the foregoing provisions of this section shall not apply to any case where such corporation shall have settled with and paid the owner of such land for building and maintaining such fence.” Rev. Stat. chap. 142, § 6.
Upon this view, the responsibility for damages, arising from neglect to build and keep up the fence, whether to the landowner, the corporation, or to third persons, would be shifted from the corporation, who are chiefly interested in the railroad, and who are, by their charters, impliedly relieved from the risk consequent upon very rapid travelling, upon the landowner, who would thus be made to bear, without compensation, one of the most serious risks of railroad travelling. There is a very strong presumption that the = legislature could not have contemplated such consequences, nor intended to make such a change of the law. And we have carefully considered this statute provision, with a view to trace the principle on which the legislature designed to settle the rights of the corporations and of the land owners, on this subject. The result of our examination is an undoubting conviction, that the legislature intended to continue the burden already imposed by the previous statute, upon railroad corporations, of erecting and maintaining proper fences upon each side of their track; and to exonerate the land owner from any liability to maintain such fences, and to provide him a stringent remedy to enforce the performance of their duty by the railroad companies.
We think this conclusion is apparent, upon the language of the act: “ If any railroad corporation shall neglect to keep a sufficient fence,” &c. With what propriety can the corporation be said to neglect to do what is no part of their duty, by contract or by law. The idea of neglect is based entirely upon the existence of a duty or obligation, and this expression, wTe think, most strongly implies, that it was designed to be the duty of the
The same view is confirmed by the consideration of the inte
We are by no means sure that upon the same principle, upon which towns, and turnpike, and bridge companies are subjected to the duty of guarding dangerous causeways, side-hills, cuts, and bridges by railings, for the safety of travellers, the duty would not be implied at common law, that is, by an extension of legal principles to a new case falling in pari ratione, upon railroad corporations to maintain everywhere, where they were needed, such fences as would prevent any danger to travellers from the animals, either of neighboring land owners, or others, escaping upon the track. This point it is at present unnecessary to decide, because we are satisfied the same duty is necessarily •implied from the revised statutes.
It has been suggested that where a new right is given by a statute, or a new duty imposed, and by the same statute a remedy is provided for any violation of such right, or neglect of such duty, the party whose rights are affected, is confined to the statute remedy. Admitting the general principle, we think it has no application to this case. If, in cases of that class, the remedy is, in its nature, coextensive with the injury, to which the party is exposed, the rule as stated would not be unreasonable. But it is apparent here, that the remedy provided is not general, but limited to a single object, that of obtaining compensation for building the fence after notice. It is in the nature of a provision to enable a party to anticipate and prevent the mischiefs that might result from neglect to build
The duties of the owners of adjoining lands as to fences, depend upon the statutes ; and in case of neglect by one owner to build his fence after notice, the other may build the fence and recover, as in this case, double the expense of building. But it has never been supposed that this remedy, designed to effect the single object of having the fence built, barred, or cut off in any way, or to any extent, any of the common law remedies for injuries resulting from the neglect of the owner to build the fence, as required by the statute.
Judgment for the plaintiff on demurrer.