| Ill. | Sep 15, 1870
delivered the opinion of the Court:
This was an action on the case, founded upon the statute of 1855, requiring railroad corporations, under certain circumstances, and with certain exceptions therein specified, to erect and maintain suitable fences on the sides of their railroads, and making them liable for stock killed on their roads in case of failure to do so. The declaration contains but one count, to which appellants filed a special demurrer, which was overruled by the court, and judgment nil dicit rendered against appellants. The sufficiency of this declaration, challenged by special demurrer, is the only question presented. We' think it is not sufficient. The first section of the act in question requires every railroad corporation, within six months after their lines, or any part thereof, shall have been opened for use, to erect and maintain a suitable fence on the sides thereof, or the part thereof “ so open for use.”
The declaration alleges, that the “ defendants, on the first of January, 1867, and from thenceforward to the commencement of this suit, were possessed and had the entire control of the Toledo, Peoria & Warsaw railroad, and had the right to run upon the same, locomotives and trains.”
“ And the plaintiff avers, that the defendants, more than six months after the said railroad was in use, and continuously to the time of the committing of the grievances, etc., neglected to comply with the before mentioned requirement, as by the statute in such case made and provided, it was its duty to do.”
These allegations are argumentative, and may tend to show that the line of this railroad, or some part thereof, was “ open for use,” and that, for the period of six months after it was so open for use, appellants failed and neglected to erect fences on the side of their road, suitable and sufficient to prevent cattle, etc. from getting on such railroad. But it is a mere tendency, and so lacking in certainty, that it will not stand the test of a special demurrer. This corporation may have had the possession, entire control of, and right to run locomotives and trains on the road, without the same having been “ opened for use.” By the statute, the railroad corporation has the full period of six months after the line, or some part of it, shall have been opened for use, in which to erect fences along the sides of so much as has been so opened for use, and no cause of action can arise for killing stock, in the absence of negligence in the act, until after the lapse of the six months. It is not alleged in this declaration, that it was after the lapse of six months from the time the line, or some part of it, was so opened for use, that the colt got upon the track. The declaration is negligently and unskillfully drawn, and it is not worth while to waste time in pointing out all of its insufficiencies. It does not even show that the railroad was located anywhere in this State. The demurrer should have been sustained. The judgment must be reversed and the cause remanded.
Judgment reversed.