| Minn. | Sep 11, 1886
According to the facts alleged in the complaint, its theory is that a railroad company which neglects to fence its road is, under the statute, liable for the damages caused by such neglect to an abutting farm, in rendering its use less valuable, by exposing stock pastured or kept upon it to the dangers of an exposed and open railroad. The defendant insists that the damages recoverable, under the statute, are only the more direct and immediate damages caused by the killing or injuring of cattle getting access to the track for want of a fence, or the injuring of passengers or employes on trains which come in collision with such cattle. The statute (Gen. St. 1878, c. 34, § 57,) is as follows: “Any company or corporation operating a line of railroad in this state, and which company or corporation has failed or neglected to fence said road, and to erect crossings and cattle-
Compliance. by a railroad company with the requirement of the -statute furnishes a measure of security to cattle on abutting lands against the acts and dangerous business of the company, and which security the statute must have intended the company should provide to such lands. The object was not to benefit those lands, — that is, to improve and render them more valuable, — but to prevent, as far as possible, injury to them from maintaining and operating a railroad •through or along-side of them. That a farm through which or along which a railroad runs is less valuable by reason of the road being without fences than it would be if the rpad were properly fenced, must be apparent to any one.
In Winona & St. P. R. Co. v. Waldron, 11 Minn. 392, (515,) 408, (533,) this court said: “We think it should admit of no doubt that, in the absence, at least, of different statutory legislation, where a railroad company parses through improved land, the cost of constructing additional fencing rendered necessary by the road is a proper ■element of damage to the owner of the land taken in invitum for the purpose of the road. But when the railroad company, whether as a ■condition or limitation of their right to take land for their road, or as ;a police regulation, is required by statute to construct such fences, the damages for taking the land should be assessed upon the basis of the construction of such fences by the company in accordance with the statutory requisition.” This proceeds on the theory that the re
To regulate the carrying on of any business liable to be injurious to the property of others, like that of operating a railroad, so that it shall do the least possible injury to such property, is as much within the police power of the state as regulating it with a view to protect life from its dangers. There can be no doubt that the state may, under that power, require railroads to be so constructed, maintained, and operated, and so protected or inclosed, that they will injure as little as possible the farms or lands through or along-side of which they run.
The suggestion that operating a railroad without the fences required by the statute is in the nature of a common nuisance, and that none but those specially injured by it can maintain an action, has no application to the case. The general public'do not have farms abutting on a particular railroad, and damage to such farms is not a damage common to all. It is peculiar to the owners of such farms. In a case of a public nuisance, if one sustains injury different in kind from that sustained by the public generally, it cannot be objected to his action that there are others, even many others, in the same situation as he.
As the court below dismissed the action, it of course did not pass on the measure of plaintiff’s damages, and that question is not before us. We determine only that, on the allegations of the complaint, the plaintiff may maintain the action.
Order reversed.