30 Neb. 318 | Neb. | 1890
Lead Opinion
The plaintiff was the owner of a farm consisting of a square tract of 160 acres of land according to the government surveys.
The defendant, being engaged in constructing a line of railroad, and having the right to apply for an exercise oí the power to condemn and use the right of way over and upon the plaintiff’s land, upon the refusal of the owner of such real estate to grant the same for a price stipulated by the parties, applied to the plaintiff to purchase the real estate necessary for its right of way, and by mutual agreement and contract the defendant purchased of the plaintiff, and the plaintiff conveyed by deed to the defendant, in consideration of $240, “a strip of land through the southeast quarter of section 26, township 7, range 6 east, one hundred feet in width, being fifty feet on either side of the center line of the road of said company as located or to be located by the engineer of the said railroad company for the construction of the same,” with a proviso for the rever
Afterwards the defendant located its line and constructed its railway on and across the said tract, in a direction nearly north and south and nearly equally bisecting the same, leaving the dwelling house, barn, corral, and pasture and other outbuildings and well on the east half. As understood from the evidence, only fields and a calf pasture, and that uncertain, are on the west side of the railroad. A public road leading to the village of Firth forms the south boundary of plaintiff’s land; also a public road on the east side about ten rods from the plaintiff’s dwelling house. Before the conveyance of said right of way and the location of the railroad plaintiff’ had made and used a private road running east and west across his farm, and crossing the line afterwards occupied, by the railroad, some three or four rods south of the center of the quarter section tract; to use plaintiff’s language, in crossing his farm from east to west on this particular track, “because he had to put in a culvert over a little draw.”
Some time after defendant had constructed and operated its railroad line, the plaintiff served a notice requiring it to fence its track and right of way, “ and put in the necessary cattle guards.” The defendant thereupon erected fences on each side of its right of way, and at the point where the railroad crosses the private farm road, that being, as testified to by plaintiff, the most convenient place for a crossing, and doubtless pointed out by him to defendant as the point where he desired the crossing to be placed, made openings in the fence on either side, with gates, but placed no wing fences, nor constructed any cattle guards in its track. The defendant also planked the space between the rails so as to provide for its being crossed with wagons.
The plaintiff brought his action in the nature of mandamus to compel the defendant railroad company to put in cattle guards, including wing fences, so that gates might
The cause being brought to this court on error by the defendant, fairly presents the question whether any law or statute is in force in this state which makes it the duty of railroad companies to construct cattle guards at private or farm crossings. But one section of statute is cited by defendant in error, sec. 106, chap. 16, Comp. Stats. of Nebraska, as follows : “ When any person owns land on both sides of any railroad, the corporation owning such railroad shall, when required so to do, make and keep in good repair one causeway or other adequate means of crossing the same.” This chapter of the statutes is entitled “Corporations,”
We are cited to no case where the language of section 106 has been construed, nor do I know of any. There is nothing in the context, or in any other section of the acb tending to indicate the sense or meaning in which the word “ causeway ” is there used; nor does the definition of it from dictionaries and cyclopedias give much assistance. Webster defines it: “A way raised above the natural level of the ground by stones, earth, timber fascines, etc., serving ns a dry passage over wet or marshy ground, or as a mole to confine water to a pond or restrain it from overflowing lower ground,” and such is substantially the definition of the Century dictionary, and of the cyclopedias. The words of the statute, “ one causeway, or other adequate means of •crossing the same,” indicate the legislative judgment that a causeway, whatever it may be, when applied to a railroad, is an adequate means of crossing its track. If the section only applied to such a part of a railroad as is known as a fill, where the road-bed is raised by an embankment above the natural level of the land, it would be reasonably clear that the causeway intended was a raising of the crossroad adjacent to the railroad track with gradients on either side for the convenience of crossing with carriages, wagons, and by horsemen. And I can conceive of no other sense in which the language could have been used in the present instance. Surely the word is not to be confounded with viaduct or bridge, as that means of crossing a railroad could only be cheaply or economically used where there is a very deep cut, which is not common to railroads in this state. This section applies as well to uncultivated as to cul
There is one other provision of the statute applicable to this question: “An act to define the duties and liabilities of railroad companies,” approved June 22, 1867. This act has been several times amended, but in so far as its provisions are involved in the present question they remain unchanged, and the act now constitutes the first article of chap. 72 of the Compiled Statutes of 1889. The object of this act was to compel railroad companies to fence their lines, defining their duties in that respect, and their liabilities in case of failure to perform them. By its provisions every railroad company whose lines, or any part thereof,
By the above pro visions.railroad companies are required, under the penalty of certain liabilities, to erect and maintain, on the sides of their respective railroads, fences suitably and amply sufficient to prevent live stock, of the kind therein specified, “ from getting on the said railroad except
But the words of the statute, immediately following those last above quoted, must be considered in connection therewith. They are, “with opens, or gates, or bars, at all the farm crossings of such railroads for the use of the proprietors of the lands adjoining such railroads, and shall also construct, where the same has not already been done, and hereafter maintain, at all railroad crossings now existing, or hereafter established, cattle guards suitable and sufficient to prevent cattle, horses, sheep, and hogs from getting to such railroad.” That part of the sentence quoted, consisting of the first twenty-six words, and which should be followed by a semi-colon, but is not, if taken literally would be satisfied by the erection of a fence with either an open or opening without either gate or bars, or a gate or bars without an opening at the farm crossings. But when these words are considered in connection with the remainder of the section, and especially the purpose and object of the statute requir
Neither the time nor space at my disposal will admit of an exhaustive review of the cases decided under statutes similar to that of ours. Some reference to them, however, is deemed necessary. A statute of the state of New York was enacted in 1850, entitled “An act to authorize the formation of railroad coporations and to regulate the same,” a part of one section of which I quote:
“ Sec. 44. Every corporation formed under this act shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, with openings, or gates, or bars therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad ; and also construct and maintain cattle guards at all road crossings suitable and sufficient to prevent cattle and animals from getting on to the railroad.”
Under this statute the case of Brooks v. N. Y. & Erie R.
“ I am also of the opinion that the true reading of the section does not require the company to construct and maintain cattle guards at farm crossings of the road, but only at road crossings. The first clause of the section before the period (semicolon, in fact) relates to farm crossings only; and the last clause relates to public crossings only.
“The cattle guard was thought not necessary at farm crossings where fences, gates, or bars would be sufficient to keep cattle within the adjoining fields, except when driven across by the owners; but road crossings, where cattle running at large in pursuance of town regulations, or other lawful cause, were liable to pass in and upon the track of the railroad, required the additional protection afforded by the cattle guards mentioned in the statute.” ,
The judgment for the plaintiff in the lower court was reversed.
The above act was amended in 1854, by which sec. 44 of the original act was substantially re-enacted as sec. 8 of the amendatory act. The language of the two sections is so nearly identical as to render the reproduction of the second as quite superfluous. Under the amendatory act the case of Jones v. Seligman., 81 N. Y., 190, was
After the above statement of the case, the opinion of the court by Mr. Justice Miller continues: “Section 8 of the general railroad act [chapter 282, Laws of 1854] requires that every railroad corporation * * * shall, before the lines of such railroad are opened, erect, and thereafter maintain, fences on the sides of their roads, of the height and strength of a division fence, as required by law, with openings, or gates, or bars for the use of the proprietors of the land adjoining such railroad, and to construct and maintain cattle guards at all said crossings, and declares that so long as such fences and cattle guards shall not be made, and when not in good repair, the corporation and its agents shall be liable for all damages ; and when such fences and cattle guards shall have been made and kept in good repair, such corporation shall not be liable for any such damages, unless negligently and willfully done.” The learned judge then goes on to construe the statute, holding that it imposes upon railroad corporations the duty of putting in cattle guards at all farm crossings, and that in the case before him the plaintiff was entitled to a crossing under the railroad.
It will be observed that the opinion only quotes a part of the first sentence of the section. The quotation stops at a comma, and that which follows is only a construction placed upon the balance of the sentence, and with all due
This opinion, being thus so manifestly based upon a misconception of the statute, thus construed, cannot be received as an authority by this court.
The Compiled Statutes of the state of Missouri (1879) article 2, section 809, provide that “every railroad corporation * * * shall erect and maintain lawful fences on the sides of the. road where the same passes through, along, or adjoining inclosed or cultivated fields, or uninclosed lands with openings and gates therein, to be hung and have latches or hooks, so that they may be easily opened and shut at all necessary farm crossings of the road, for the use of the proprietors or owners of the land adjoining such railroad, and also to construct and maintain cattle guards, where fences are required, sufficient to prevent horses, cattle, mules, and all other animals from getting on the railroad j and until fences, openings, gates, and farm crossings and cattle guards, as aforesaid, shall be made and maintained, such corporations shall be liable in double the amount of all damages which shall be done by its agents, engines, or cars to horses, cattle, mules, or other animals on said road, or by reason of any horses, cattle, mules, or other animals escaping from or coming upon said lands, fields, or inclosures, occasioned in either case by the failure to construct or maintain such fences, or cattle guards,” etc. Under this statute arose the case of Dent v. The St. Louis & Iron Mountain Railway Company, 83 Mo., 496. This was an action for the recovery of double damages for stock killed by a train of cars in consequence
The Revised Statutes of the state of Illinois (1875) contained the provision as a part of chap. 114, sec. 37, * * * “That every railroad corporation shall * * * erect, and thereafter maintain, fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs, or other stock from getting on such railroad (except at the crossings of public roads and highways, and within the limits of cities and incorporated towns and villages), with gates or bars at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroads; and shall also construct, where the same has not already been done, and thereafter maintain, at all road crossings now existing, or hereafter established, cattle guards suitable and sufficient to prevent cattle, horses, sheep, hogs, and other stock from getting on such railroad,” etc. Under this statute, the case of P. P. & J. R. Co. v. Barton, 80 Ill., 72, arose. In the court below, Barton sued the railrway company for the value of stock belonging to him that had been killed by the engine and cars of the defendant at two different times and places. One of the animals for which the plaintiff recovered was killed.in the town of lower Peoria, at a point where it was not the duty of the railroad company to have fenced its track. I quote from the opinion of the supreme court by Chief Justice Scott, that “the other stock was killed on the defendant’s road where it passes through a
The General Statutes of the state of Minnesota (1878), at chap. 34, secs. 54-5, provide that “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.
“ Sec. 55. All railroad companies shall be liable for domestic animals killed or injured by the negligence of such companies; and a failure to build and maintain cattle guards and fences, as above provided, shall be deemed an act of negligence on the part of such companies.”.
An act of the legislature of the state of Wisconsin, entitled “An act in relation to railroads and the organization of railroad companies,” approved March 22,1872, provided sec. 30, that “ every railroad company or other party having the control or management of a railroad, the whole or any part of which shall be located in this state, shall and is hereby required to erect and maintain good and sufficient fences on both sides of such road (depot grounds excepted)
In the case of Cook v. M. & St. P. R. Co., supra, the supreme court in the opinion by Judge Lyon construes the said statute, from which opinion I quote: “The only negligence which the complainant imputes to the defendant is the failure to put in the additional cattle guard; and the loss of or injury to the horses of the plaintiff is attributed solely to the absence thereof. The action is predicated upon the hypothesis that the defendant was under a legal obligation to put in the cattle guard, and hence is liable for all damages suffered by the plaintiff in consequence of its neglect to do so. Unless this hypothesis is correct, the complaint fails to show a cause of action against the defendant. The controlling question is, therefore, was the defendant under a legal obligation to put in such cattle guard? The complainant does not allege that the defendant ever agreed to do so, but it is argued that this is a public duty, the performance of which is obligatory upon the defendant without any such agreement. It is quite true (and the court has so held) that the defendant, as lessee in possession of the railroad, holds it subject to all duties imposed on its lessor for the benefit and protection of the public. (McCall v. Chamberlain, 13 Wis., 637.) But the
The Indiana decisions, while in line with the cases cited, are not considered as authority in this state; the statute of that state in regard to the duty of railroads to fence their lines being so different from our own.
The only cases cited by either party in the briefs of counsel, in the ease at bar, are Boggs v. C.,B. & Q. R. Co., 6 N. W. Rep., 744, and Gray v. Burlington & Mo. R. Co., 37 Ia., 119. The decisions and opinions in these cases are founded upon sec. 1936 of the Code of Iowa, that “ when any person owns land on both sides of any railway the corporation owning the same shall, when requested so to do, make and keep in good repair one cattle guard and one causeway or other adequate means of crossing the same, at such reasonable, place as may be designated by the owner.” (Iowa Code, vol. 1, p. 490.)
The cases cited, as well as others of the supreme courf of Iowa, decided under the above law, hold that it is the duty of railroad companies, under the circumstances contemplated by the language of the section, to put in cattle guards when requested so to do by the owner of lands situated on both sides of the railroad. I do not doubt the correctness of such holdings, but the statute under which they were made is so radically different from our own that they cannot be followed here.
I therefore reach the conclusion that the provisions of our statute above quoted, either by their language analyzed and fairly construed, or in the light of the construction placed upon similar statutes by the courts of other states, did not impose upon the defendants the duty of putting in cattle guards at the private or farm crossings on the plaint
Reversed and dismissed.
Concurrence Opinion
concurs.
Being unable to concur in the decision of the majority of the court, I deem it my duty to state the reasons for such non-concurrence. The plaintiff’s railway runs between the defendant in error’s residence and the public road, and he has applied under the statute to require the company to leave an open way between his residence and the public road. On the trial of the cause in the court below judgment was rendered in his favor, from which the railway company brings the cause into this court.
Sec. 106, chap. 16, Compiled Statutes, provides: “When ' any person owns land on both sides of any railroad the corporation owning such railroad shall, when required so to do, make and keep in good repair one causeway or other adequate means of crossing the same.”
Sec. l,art. l,chap. 72, Compiled Statutes,provides: “That every railroad corporation whose lines of road or any part thereof is open for use, shall, within six months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not now open for use, shall, within six months after the lines of such railroad or any part thereof are open, erect, and thereafter maintain, fences on the sides of their said railroad, or the part thereof so open for use, suitably and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages, with
These statutes are in pari materia and are to be construed together. It will be observed that, under see. 106, chap. 16, the railway company is required, when requested so to do, to make and' keep in good repair one causeway or other adequate means of crossing the railway. The compound word “causeway” appears to be derived from the Latin words via ealaiata — a way paved with limestone. The present meaning of the word is a way raised above the natural level of the ground by earth, stones, etc., and when applied to a railway crossing it evidently means a suitable passage way across the track and right of way. If it would be inconvenient to construct a causeway, then the railway company must provide other adequate means of crossing the track and right of way. Sec. 1 of chap. 72 requires farm crossings of railroads to be with opens, gates, or bars. There are three Classes of cases therefore provided for by statute and the question of what is an adequate crossing is a question of fact, considering all the circumstances of each case. If a crossing is but little used, then bars may be sufficient and would be an adequate provision. If the crossing is used to a greater extent, then gates may be sufficient, but if the crossing is in constant use — as where the railway intervenes between the public road and the residence of the land-owner, then an adequate crossing would be an open way. The words “ with opens” are evidently designed to apply to cases of that kind, otherwise they have no meaning whatever.
Railways have become a matter of public necessity, and under the statutes of this state there is but little restriction upon the right of a railway corporation to construct roads wherever its inclination may suggest. From the necessity of the case the property of private individuals must sustain injury by the running of such roads. This, however,
The court below found that the open way was the only adequate means of crossing, and this court cannot say, as a matter of law, that such way is not required. The words “with opens” are entirely ignored in the majority opinion, although they evidently refer to a class of cases not
The judgment of the court below in my view is right and should be affirmed.