35 N.Y. 641 | NY | 1866
It appeared, on the trial of this cause, that
the roadway of the defendant, and also of the Yew York Central, ran through plaintiff’s farm, side by side, each of the width of fifty feet. The roads adjoined each other, the west line of defendant’s road abutting upon and forming the east line of the Central. That the outside or east line of the defendant’s road was always properly fenced with suitable cattle guards, at the highway and farm crossings, but there were neither cattle guards or fences on the west line, nor, in fact, on either line of the Central, the fence once built, on its west line, having been destroyed, and the cattle
On the 4th of January, 1857, the plaintiff granted to the defendant a roadway through his farm, and in the deed thereof it was provided as follows: “ Said party of the second part (the road) is to erect and maintain a fence upon the easterly line of the lands above described, of the height and strength of a division fence as required by law.”
It is insisted, on the part of the defense, that the plaintiff was bound by the covenants in the deed of his grantor to the Tonawanda railroad. _ That those covenants run with the land, and were “ a perpetual release to that road and to its ‘ successors and assigns ’ from all obligation to build any fence on the line.”
Assuming that these covenants did run with the land, as they probably did (Norman v. Wells, 17 Wend., 136), they were, made in 1842, prior to the passage of the act requiring railroads to fence on both sides of their roadway. (3 Statutes at Large by Edmonds, 635, § 44, enacted in 1840.)
This covenant must, therefore, be construed in reference to the rights of the parties and their liabilities as then existing. The Tonawanda railroad, as the proprietor of adjoining land, was not bound, under the then statutes, .to make all the fence on both sides of the road, but to make and maintain one-half
There is nothing in the deed which requires the grantor, to' erect any fence. The plaintiff, therefore, is not within the provision of the act which requires “ an owner of land adjoining any railroad who or whose grantor has received a specific sum for fencing along the line of land taken for the purpose of said railroad, and who has agreed to build a lawful fence on the line of said railroad, to build and maintain ” the same; and, in case of neglect, the railroad may build and maintain it at his expense. (1 Statute at Large by Edmonds, § 9, Laws of 1854.) The railroad act of 1850 and the act'as amended in 1854, section 8, makes the railroad company liable for damages done to cattle, &c., so long as the fences, &c., shall not be made and when not in good order.”
I do not perceive that the plaintiff’s grantor has in any manner released the railroad from any obligations or liabilities imposed by that act. The parties could not have had that act in view, as it was not in existence when the covenants were made, and they did not qualify its obligations.
The act was passed from public considerations. Its purpose was to give protection to the traveling public, as well as redress to farmers contiguous to the road. (Corwin v. New York Central Railroad Company, 13 N. Y., 42, opinion of. Denio J.) So that if the covenant under consideration related to the defendant’s road instead of a road outside and' adjoining,T do not think it would have been a defense.
But it was not a covenant with this defendant, nor is this’ .defendant an assignee thereof, or in any manner privy to it..
How, then, can the'defendant claim its benefits %
But it is said the plaintiff was guilty of negligence in turning his cattle into his meadow when he knew the railroads were not fenced, and hence they could stray thereon and he injured. His negligence, therefore, contributed to the injury, and he cannot recover upon this ground. The complaint was dismissed.
If this be true, then the railroads need never fence their roads so far as respects adjoining owners. Landowners could not, of course, occupy their lands adjoining railroads, but must pasture their horses, cattle, sheep and hogs on some other farm unless they volunteer to discharge the duties •which the statutes impose upon the roads. This cannot be ' law, such a construction: was never intended by the legislature. It virtually nullifies the act. It is not negligence within the meaning of the rule for an owner to pasture his cattle on his own farm, because a railroad fails to discharge its statutory duty, and fence its road. Such a construction as that adopted at the circuit, not virtually but entirely nullifies the act so as regards any protection or relief to farmers adjoining the railroads.
If the railroad neglects to keep the fences in repair, it may be urged that a farmer with ordinary diligence will know it and send his cattle off from his farm, otherwise, if injured, he can have no redress; or, plainer still, if the railroad not partially performs, but wholly omits its duty and makes no fence at all, then of course the adjoining owner will know it and should abandon his farm as to his cattle, as if they are killed the willful refusal or neglect of the railroad to perform its statutory duty is its absolute defense.
The legislature in declaring the absolute liability of the railroad for all such damages when it omitted to make the required fence, did not intend any such contradiction or qualification, and never would have passed a statute requiring an owner to abandon the ordinary use of his farm because of the railroad’s neglect to do its duty, or if he should use it in
Second. I think the company cannot be allowed to set up that negligence, if it may be so termed, when it has itself omitted to fulfill the requirements of the statute; it should not be permitted to set up its own violation of a statute duty, as a basis of charging negligence upon others. Besides, this objection, I think, is substantially disposed of on the authority of this court. (Corwin v. New York and Erie Railroad Company, 13 N. Y., 42.)
This, of course, does not authorize a recovery where an owner has voluntarily and purposely incurred the damage.
The plain answer would seem to be that it was necessary •in the case at bar, as the facts proved. It is nowhere enacted that one railroad may rely upon another to erect a fence, or to contract for such fence. But each one, upon its own responsibility, must discharge its own obligations. Had the Central road properly discharged its duty, and erected a fence along either line of its road, it is highly probable, and may be conceded, that this loss would not have occurred. That is no defense to this road. There are some reasons why each road should fence for itself, though they do run side by side. The legislature may enact otherwise; but as the law now stands, we think that each road must «see to it, at its peril, that the necessary fence is made.
The statute quoted was probably aimed at rivers or lakes, through whose borders the railroads might run, and where a fence would be unnecessary; or in other cases, where high rocks or other obstructions would render it unnecessary to fence against the invasion of cattle. It is also urged that, by accepting from the defendant a covenant to fence the east side of its road, the plaintiff virtually discharged it from all obligations to fence the other side.
This is decided otherwise. (Pohler v. New York Central Railroad, 16 N. Y., 476.)
All the judges concurring,
Judgment affirmed.