76 Ind. App. 616 | Ind. Ct. App. | 1921
This is an action to recover damages for the death of a cow which escaped through a fence and on to the right of way of appellee, where it was killed by one of appellee’s cars. Appellee owns and operates an electric interurban railroad. Appellant is a tenant on a certain tract of land through which appellee’s road runs. In 1901, appellee’s predecessor in title by deed from the then owners secured a right of way through said land. This deed provided that the
We cannot agree with this contention. True, the word “maintain” does not always mean to provide or to construct as defined by lexicographers, but may mean to keep up, to keep from change, to preserve. Louisville, etc., R. Co. v. Godman (1886), 104 Ind. 490, 4 N. E. 163. It has been construed to require a fence to be rebuilt as well as repaired. Rhodes v. Mummery (1873), 48 Ind. 216. The Century Dictionary defines the word “maintain" as follows: “To hold in an existing state or condition; keep in existence or continuance ; preserve from lapse, decline, failure or cessation; keep up.” When the deed in question was made, interurban roads were not required to fence their right of ways. At that time it was the duty of the owner of the land through which the road ran, if he wished to prevent his stock from being injured by getting on the right of way, to see that fences were erected for that purpose. That being the condition of the law when the deed was made, it is clear that the agreement must be construed to mean that the railroad company was to construct the fence along its right of way and that thereafter the land
Judgment affirmed.