3 Edw. Ch. 487 | New York Court of Chancery | 1841
From the testimony of Ship-man, Leach and Sutphen and from an inspection of the model exhibited, I am perfectly convinced that these “ guards,” properly constructed across a.rail road, are effectual barriers to the passage of horses, cattle, sheep and swine along the track or within the lines of the road; and when connected, as the guards must be, with the exterior fences of a farm or with the interior division fences of fields crossing the road or any partition fence between owners of adjoining lands intersected by the rail road that they will as effectually prevent the ingress and egress of cattle or other domestic animals as the best of
But, notwithstanding these facts, it is urged as a matter of legal right in the land owner to have his lands adjoining to a rail road running through them separated therefrom by a good and sufficient fence, to be constructed at the expense of the company in the first instance and, afterwards, to be deemed a partition fence as between owners of adjoining lands.
This is the point I have now to consider. In the case of the Rensselaer and Saratoga Rail Road Company, (4 Paige, 553,) the Chancellor speaks of an owner of land, through which a turnpike or a common highway is made, being obliged, from necessity, to make the fence along such roads to enclose his lands (unless he is willing to have his land open as a common,) for the turnpike company or the public have no interest to keep up such fences for the sake of the roads, because the running at large of cattle upon them cannot materially interfere with travel and ordinary use. In these cases, the land owner being compelled to make fences, which, but for the laying out of the turnpike or highway, he would not be obliged to make, is entitled to full compensation for the expense to which he is thus subjected. And the counsel in argument insists that the evidence, which proves there is more safety from cattle on a rail road when-it is unfenced at the sides than when it is, only shows that the rail road company has no interest to keep up such enclosures; and places such road upon the same
Then, if the Long Island Rail Road Company have no interest in supporting fences for the protection and security of their road, upon what principle can Mr. McConochie call upon them to contribute to the making of such fences ? It is only
By this proceeding to take a strip of land for the use of the Long Island Rail Road, the company are vested with the title as owners and proprietors of the soil; and between them and Mr. McConochie it becomes a case of ownership of adjoining lands. At common law, no man is bound or can be compelled to enclose his land ; he may, in the freedom of his will, leave his lands open and unenclosed by any fence and, at the same time, use them for tillage, pasturage or in any other way that he best can, being responsible for any injury which his beasts, when wandering from his land, may occasion to others ; while he will be entitled to an action for any voluntary trespass which may be committed upon him (1 Cowen’s Treatise, 381, 2d edit.;) and the statute law of this state in relation to “ division and other fences,” (1 R. S. 353, sec. 30,) expressly recognizes the right of an owner of lands adjoining those of another to let his lands lie open ; and so long as he chooses to do so, no obligation rests upon him to contribute to the division fence which his neighbor may think proper to erect between them (1 R. S. 346.) It is only when he afterwards incloses so as to take to himself some benefit of the fence along the division line as a part of the inclosure that he can be called on to pay for one half of it. And why should not this law apply to cases like the present ? The Chancellor considered that this 30th section of the statute did not apply, in terms, to rail roads, because he says, the lands of the rail road company are not, in fact, enclosed at those points where the road is crossed by the public highways. It is very evident that this was said in reference to the liabilities imposed on parties by the statute to contribute where lands are enclosed, but it has no reference to the exception at the close of the section recognizing the privilege of leaving lands open and unenclosed. This case, I think, is,
I must allow the report and assessments of the appraisers to stand without any modification or amendment, except that, in the order confirming it, I must enjoin it as a duty upon the Long Island Rail Road Company to construct, at their own expense, proper and sufficient cattle guards across and upon the road wherever it intersects the exterior boundary lines of Mr. McConochie’s land and the interior division fences thereof upon the plan of the model exhibited ; and that the company continually hereafter keep up and support those guards or barriers in a substantial and durable manner, as well as that the company grant to him and his heirs and assigns the privilege or easement of crossing the rail road at such and so many places as he may designate on his land, for the convenience of farming business thereon and that the company prepare and make those crossing places at their own expense.