163 Ind. 348 | Ind. | 1904
Appellee alleges in his complaint that the right of way of appellant’s railroad abuts on his farm for about forty rods. Many years ago, and within one year after the completion of the railroad, appellant constructed on said abutting line a sufficient fence as required by §5323 Burns 1901, made of oak posts, barb-wire, and a single line of six-inch boards reaching from post to post
The evidence shows, without contradiction, that the fence was originally constructed and had become out of repair as alleged in the complaint; that the notice given was under §5325, supra, to the effect that it was out of repair, and insufficient to turn stock, and that in reconstructing the fence appellee used wholly new posts and new barb-wire, thus making a new structure. Based upon this proof, appellant’s only contention here is that, since the evidence shows that appellee constructed a fence altogether of new material, it was therefore a new and original fence, and not a repaired fence, and that proof of notice that the fence was out of repair, as provided in §5325, supra, will
There is no substance in appellant’s contention. Section 5323 of the statute imposes upon railroad companies the duty of fencing in their rights of way, prescribes when it shall be done, and the sort of fence they shall make. To secure prompt performance §5324, supra, provides that when the company fails for more than a year after the completion of its road to fence it, the abutting landowner may, after notice of his intention, enter upon the right of way, construct a fence, and recover the cost and attorney’s fees from the company. Section 5325, supra, provides that, when such original fence has been completed, the company, lessee, assignee, receiver, or other person or corporation operating the road, shall .keép the same in good repair and sufficient to answer the purpose for which it was constructed, and upon the company’s failure to make or commence repairs within thirty days after notice the abutting landowner may make them and recover the cost thereof from the company.
Here is a complete statutory scheme to secure and maintain the fencing of a railroad company’s right of way in a manner sufficient to keep all domestic animals from its track. The scheme embraces, first (§5323, supra), the duty to fence and manner of its discharge; second (§5324, supra), time limit, after the completion of the railroad, for the construction of the first or original fence, and landowner’s right upon default; and third (§5325, supra), the duty to maintain, and landowner’s right upon the company’s failure to keep up the fence according to the original standard. The complaint charges, and the evidence shows, that the first or original fence was timely constructed as required by law. This discharged the company’s obligation under §5324, supra, and the new duty of keeping it up, or “in good repair and sufficient to answer the purpose for which it was constructed,” arose under §5325,
Judgment affirmed.