| Minn. | Feb 14, 1888
In 1879, the defendant acquired from the plaintiff, by purchase, the right of way for its railroad across the plaintiff’s farm, and has ever since operated its railroad over the same. During this period the farm has been fenced, except along the railroad, where no fence has been built. In this action the plaintiff, who has been in the occupation of his farm, cultivating the same and raising stock, seeks to recover damages for the neglect of the defendant to construct fences, as by statute it was required to do. Upon a former appeal in this action, involving the sufficiency of the complaint, we had occasion to consider whether for such a cause the plaintiff could recover, the injury alleged in the complaint being a diminution of the value of the use of the farm, the deprivation of its use, and the expenditure of time and money in watching stock to protect it from injury. It was then decided (Emmons v. Minn. & St. Louis Ry. Co., 35 Minn. 503" court="Minn." date_filed="1886-09-11" href="https://app.midpage.ai/document/emmons-v-minneapolis--st-louis-railway-co-7965110?utm_source=webapp" opinion_id="7965110">35 Minn. 503, 29 N. W. Rep. 202,) that damages were recoverable, and that the liability of the defendant was not limited to making compensation for animals killed or injured by reason of such neglect. The measure of damages recoverable was not determined. Many of the points urged in behalf of the railway company upon this appeal were necessarily involved in the former ease, and were determined by that decision. We do not, therefore, refer to them particularly. The question is now presented whether the diminution of the rental value
We consider that this measure of damages — not now referring to the limitation — was proper. This is a logical conclusion from the former decision, in view of the reasoning upon which it was based. See, also, Brakken v. Minn. & St. Louis Ry. Co., 29 Minn. 41, (11 N. W. Rep. 124.) It is true that if the occupant’s stock were killed because of the defendant’s neglect to construct a fence, he might recover their value; but it cannot be said that this rule subjects the company to double damages for the same cause of action. The fact that the company is liable for stock killed, will, of course, enter into and affect the rental value. That value will not be as much depreciated by the unfenced condition of the farm as it would be if there were no such liability. But it cannot be laid down as,a legal proposition that the recovery must be limited to what it would cost to construct a fence. The principle that one should not neglect to take reasonable precautions to lessen or avert the injurious consequences to which the culpable act of another may have exposed him cannot be applied so as to make it the duty of the land-owner to himself construct the fence. The statute absolutely imposes that duty upon the railroad company, and declares its responsibility in case of neglect. This being so, it is inconsistent to say that upon default of the company it becomes in any sense the duty of the land-owner towards the company to construct a fence in its stead. But, again, zuhen can it be said that the landowner ought to construct the fence ? Is he to assume that the railroad company will continually neglect to do what the statute continually requires it to do ? and so must he construct the fence at once ? So long, at least, as he is justified in waiting for the company to do its -duty, he may suffer damage from being prevented from using his land, ■or in the loss of its rental value; and, if he were then to build a fence, this loss would be a proper subject of recovery, in addition to the proper «ost of the fence. But for the reason first stated, we think the ruling of the court was unsustainable. We are not referring to a mere de
For the reasons thus indicated, the order refusing a new trial is reversed.