The Vice-Chancellor :
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 *491farm fence will do. It is true that animals will not thereby be prevented from passing over the road from one side to the , , f , , r j j other nor along the road between any two ot the guards; and where this may happen in any enclosed field, it can only so happen with the cattle or other animals of the owner of the field which he may turn or suffer to run therein. And whenever the rail road shall run across an enclosed field, it does not follow that the owner is deprived of the opportunity or advantage of using the land on both sides in common as one field at the same time, either for tillage or pasturage ; all that he may require will be the privilege of crossing the rail road from one part of the field to the other (and this privilege to Mr. McConochie, the Rail Road Company avow themselves ready and willing to give.) If the rail road should cross the field in a deep cut or upon any considerable embankment, then, indeed, the land owner may be put to great inconvenience and, per haps, be entirely prevented from crossing for ordinary farming purposes. But it does not appear that this will be the case with Mr. McConochie, and for whatever inconvenience he may be subjected to in this respect or from the manner in which his land may be cut up and his fields disfigured by the making and running of the road, as well as for the real value of the land taken, I must suppose the award of one hundred dollars is intended as a full compensation. This sum is not objected to on the ground of its insufficiency to cover the value of the strip of land and all such consequential damage, if any such there be. It is only insisted that Mr. McConochie is entitled, in addition, to have fences erected along side of the rail road, where it runs through his land, at the expense of the company. 1 am of opinion that such fences are not essential to the ordinary use of the farm in any branch of husbandry; and that, for these purposes, the construction of “ cattle guards,” wherever the exterior and interior fences of the farm intersect the road, will afford all the protection which may be necessary against the egress and ingress of cattle to and from the highways, the adjoining fields and other contiguous lands; and, therefore, that Mr. McConochie is not entitled, upon any such view of the case, to have fences (other than the cattle guards) erected in whole or in part at the expense of the company. I am also well satisfied, by the .testimony of the wit*492nesses, who speak from what they have seen and experienced on jjjjg ancj oihgj- raj¡ roads for a number of years, that it is , . . not necessary that a rati road should be fenced at the sides to jnsure the safety of persons and property in transit on the road . J r r r J against accidents from cattle getting thereon. Indeed, it is very c]ear]y t0 be perceived that there is less danger of running over them, when they do get upon the road where there is no side fence to prevent their going off, than where there is such an obstruction. The law of self-preservation, creating fear or the dread of danger and a disposition to avoid it operates upon the animal instinct and they naturally diverge from the course of the road in their haste to escape ; and if a fence is in their way, it serves, in the language of one of the witnesses, as a foil to turn them back upon the road ; and it is only in such parts of the road as are fenced that accidents of this kind generally happen.
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 Ch., 553" court="None" date_filed="1834-09-01" href="https://app.midpage.ai/document/in-re-rensselaer--saratoga-railroad-5548109?utm_source=webapp" opinion_id="5548109">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 *493footing as a turnpike or highway and so would subject the company at once to the liability in such cases pointed out by the Chancellor. I cannot agree with the counsel in the supposed analogy or in the application of that principle. A rail road is not like a common highway or turnpike intended for general travel and the passage of all sorts of cattle. It can only be used as a particular mode of conveyance for passengers and goods. It admits of barriers placed, wherever needed, to obstruct the passage, at those points, of every thing except the moving power and its train ; and when it runs through the land of an individual, it does not lay open and expose the land and growing crops to injury as does a common travelled road. The Chancellor further observes that the manner in which a rail road is to be used renders it necessary that the company should secure their road against the encroachments of cattle from adjacent lands so as thereby to ensure the safety of the persons and property passing upon the road ; and he considers that the obvious mode of doing this is by fences. It has already been shown, from the evidence before me, that this security can be attained better without resort to longitudinal fences than with them, unless, indeed, fences should be so strong and firmly built as to be completely cattle proof. What are deemed good and sufficient fences among farmers for all ordinary purposes, it is very evident do not always prevent cattle from getting on the road. How often are fences broken or thrown down by cattle, which officers of the town, called fence-viewers, adjudge to be good and sufficient, so as to justify the distraining of the cattle damage feasant for the trespass'? Such cases occuringshow that a good and sufficient fence in the law is not always capable of restraining cattle. A rail road company could not be required to put up or pay for any other; and such, it is shown, do not afford the degree of security required. They had better then be dispensed with and the road left to that sort of security which consists in cattle having free and unobstructed egress from the road when alarmed, as they are sure to be, by the approach of the engine.
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 *494upon the ground of mutuality of benefit that the equitable claim of contribution is founded; and it is upon that principle, the Chancellor held, in the case as it stood before him, that the Rensselaer and Saratoga Rail Road Company, being as deeply interested as the land owner in having partition fences, was bound to make one half. But when that mutuality of benefit does not exist or either party chooses to forego it and to dispense with an enclosure of his lands, no just claim of that sort can arise.
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, *495taken out of the operation of the decision made by the Chancellor so often referred to, by reason of the facts which are in evidence before me in relation to the utility of “ cattle guards” and the security of the rail road without fences, which experience has verified since the Chancellor’s decision was made; and it follows that so long as the rail road company choose to have the road unfenced at the sides, they cannot be called upon to do any thing towards fencing it by an adjoining owner. But should the company hereafter find it necessary, for their own interest or convenience, to have the road enclosed, they will then bring themselves under the statute and be compelled to make or pay for the making of one half thereof; and should there be any town law or regulation adopted (if any such there can be) under the authority of the statute which confers powers on the inhabitants assembled in general town meeting, requiring partition fences to be made at all events between the rail road and the lands of adjoining owners, then the company will be bound to conform to such regulation provided it be lawfully binding upon them.
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.