Payton v. Louisville & N. R. R.

115 Ky. 53 | Ky. Ct. App. | 1903

Opinion of the court by

CHIEF JUSTICE BURNAM

Affirming.

The appellant, George W. Payton, brought this suit to compel the appellee, the Louisville & Nashville Railroad Company, to restore cattle guards removed by it, which it had maintained for 35 or 40 years on both sides of his farm .crossing, and also at the property line between his farm and the one adjacent, on the ground that by long-continued use of the passway he had acquired an easement in the wing fences and cattle guards which inclosed iit, and that their removal had rendered his crossing less convenient in driving stock across the railroad from one part of his farm ■to another, as there was nothing to prevent them from running up and down the right of way. A general demurrer was sustained to the petition, and, failing to plead further, his petition was dismissed, and he appeals.

The common law imposed no duty upon railroad companies to fence their roads, maintain cattle guards, or erect any other barrier or stay against the intrusion of stock upon .their roads or right of way. See Elliott on Railroads, section 1198; 7 Am. & Eng. Ency. of Law, 906, 912; Rorer on Railroads, 616; Birmingham, etc., R. R. Co. v. Parsons (Ala.), 13 South., 602, 27 L. R. A., 264, 46 Am. St. Rep., 92. And wherever these duties exist they are always by virtue either of the contract or a statute. There is' no claim that the defendant owed plaintiff any duty to maintain these cattle guards by virtue of any contract. And. section 1793 of the Kentucky Statutes is the only statute bearing upon the question. It provides: “All corporations and persons owning or controlling and operating railroads, as aforesaid, shall erect and maintain cattle guards at all terminal points of fences constructed along their lines, except at points where such lines are required to be fenced on both sides and at public crossings. But where there is a private pass-way crossing said railroad, the land owner for whose benefit it is kept open, shall bear one half of the expense of cattle guards and gates. The former to erect gates. The corporation or person operating the railroad to erect the cattle guards.” In McKee v. Chicago, New Orleans & Texas Pacific R. R. Co.’s Receiver (102 Ky., 253), (19 R., 1270), 43 S. W., 241, it was the contention of the land holder that it was the duty of the railroad company operating its line through his farm to construct and maintain cattle guards at the point where the railroad company entered his farm and where 'it left it. And in that case, as in this, the company had actually constructed such guards when it built its railroad in 1876, and had torn them down in 1894, and in consequence thereof his farm had been trespassed upon and his crops destroyed. In response to this contention, the court said: “The railroad company, not being under any legal obligation to maintain catile guards'at the points of entering and leaving the plaintiff’s farm, merely because they were dividing lines with his neighbor, might remove them at any time. These guards were not division or partition fences between his lands and those of the company. They were wholly on the lands 'of the company, and the rights of the parties were not regulated by the provisions of the law as to division fences on farm lands.” There is no averment that the pass-way is obstructed, or that plaintiff had ever offered to pay one-half the expense of erecting and maintaining them, and consequently he does not bring himself within the purview of the statute. And “no obligation rests upon the landowner to fence the way in Avhich another has an easement.” See Jones on Easements, section 409. The cattle guards aind Aving fences were erected and maintained by the railroad company entirely on its OAvn land, and form no part ' of the division fences between its right of way and the land of plaintiff, and no length of time would have vested him with a prescriptive right to .require their maintenance by the railroad company alone.

For reasons indicated, the judgment is affirmed.