63 Minn. 37 | Minn. | 1895
Lead Opinion
This action is brought to recover damages arising from the neglect of the defendant to fence its railroad as required by G-. S. 1894, § 2692.
The plaintiff owns two large adjacent stock farms in Stevens county; one containing 640 acres and the other 320 acres. The defendant’s road is constructed across each of these farms, for a distance-of about two miles, without being fenced as required by law. Each, farm is used separately, and has its own buildings. The railroad runs nearly through the center of one farm, and divides the other so
There were only three witnesses, including the plaintiff, sworn in his behalf, and none on behalf of the defendant. The witness Brittondall testified as to the amount of damages to the premises by reason of the railroad’s not being fenced, but added that he also based his opinion as to such damages upon the fact that the whole tract was not fenced on all sides. Of course, such evidence could not constitute the proper basis for estimating the legal measure of damages, as against the defendant, by reason of its negléct to fence its road. Whether there were fences or not on all of the other sides of the farm, except where the railroad was bound to fence, was immaterial, and •could not properly be considered in adding to or lessening the damages to which the defendant was liable by reason of its neglect to fence its road as required by law. None of the evidence of this kind, however, was objected to, and therefore no question of error arises upon its admission. If there was no other testimony upon the subject, it would only show that the verdict of the jury is not sustained by the evidence. It is claimed by the defendant that the testimony of the witness Sanders is of the same character. There is considerable doubt about this being a fair construction of his evidence. It can be asserted with much force that his testimony related to the fence which the railroad company was bound to build, and not to fences upon other sides of the premises. But, whichever view of the testimony is correct, it is not necessarily material in the deter-
The statute to which we have above referred (G. S. 1891, § 2692), in regard to railroad companies’ fencing their roads, reads as follows: “All railroad companies in this state shall, within six months from and after the passage of this act, build or cause to be built good and sufficient cattle-guards at all wagon-crossings, and good and substantial fences on each side of such road.” Evidently, the witness based his opinion upon the assumption that it was the duty of the railroad company to build its fences on the margin or outer line of its right of way; that is, upon the division line between him and the railroad company. Is not this the true construction to be placed upon the language of the statute? In Webster’s International Dictionary the word “side” is defined to be the “margin, edge, verge, or border of a surface; * * * a bounding line of a geometrical figure; as, the side of a field, of a square or triangle, of a river, of a road.” This word “side” is not here used in a technical sense, but as it is commonly and properly understood. The meaning of the words “on each side of such road” is that the fence must be built on the margin or border of the entire railroad right of way, and therefore on the division line between such right of way and that of the adjoining proprietor. This construction evidently gives full force to the spirit and intent of the language of the statute, as well as to the usual and popular meaning
This was the view taken of the statute of Illinois which required the railroad company to erect and maintain fences on both sides of its road.
But there is another ground upon which the order of the trial court should be sustained. There is a long line of cases, commencing with that of Winona & St. P. R. Co. v. Waldron, 11 Minn. 392 (515), holding, as the settled doctrine of this court, that when a railroad company, whether as a condition or limitation of its right to take land for its road, or as a police regulation, is required to fence its road, the damages for the taking the land should be assessed upon the basis of the construction of such fences by the railroad company. In this case we must assume, in the absence of any proof to the contrary, that the railway company has merely an easement in its right of way, and that the fee of the land, subject to the easement, remains in the plaintiff. If the railroad company had built a fence on the line of its right of way, the plaintiff would have been entitled to join his fences to it, so as to inclose his land, without having to build another and parallel fence on the same side of his land. Even if we should concede that the railway company is not bound to build its fence on the line of its right of way, it is clear that it cannot, by building it inside of the line, upon its right of way, deprive the landowner of the benefit of it as a line fence. If the company builds its fence inside of the margin or edge of its right of way, the landowner may extend his fences so as to connect with it. Having had his damages assessed upon the basis that it, and not the landowner, will build the fence between bim and it, the railroad company cannot be heard to say that he cannot join his fences to its fence for the purpose of inclosing his land; and this right to thus connect his fence is an element which may be taken into account in estimating the value of the use
Therefore it seems to us that the plaintiff’s testimony in regard to the groimds upon which he based his damages was substantially correct. It was the legal right of joining his fences with the defendant’s, either on the exact line, or near to and inside of it, which he considered the primary element in estimating his damages, and the matter of expense in building a few feet of additional fence would be of too little consequence to seriously affect the amount of damages one way or the other, and certainly not to the disadvantage of the defendant’s rights. It was therefore properly submitted to the jury, and, there being no evidence to the contrary, we should not disturb the verdict.
It is a matter of great importance that railroad companies fence their right of way, because it involves the safety of the lives of the traveling public, as well as the interests of the adjoining landowner; and, if they continually and obstinately persist in defying the plain provisions of a positive law, perhaps obedience to its requirements will be quickened and obtained by being mulcted in damages in favor of an injured landowner, the rental value of whose adjoining farm is thus impaired year after year.
There being no prejudicial errors in the case, the order denying the motion for a new trial is affirmed.
Rev. St. (1874), c. 114, § 37 (p. 808).
Concurrence Opinion
I concur in the result, but do not wish to commit myself to the proposition that under the statute a railroad company is required to build its fences on the line of its right of way. The