This wаs an action brought by the appellee to enjoin the appellants frоm entering upon the lands of appellee, adjoining the railroad right of way, and from cutting the growing timber thereon; also, to collect damages for timber already cut.
Judgment for damages and a perpetual injunction were awarded as prayed for.
In this paragraph of answer the appellant company avers that it is the owner, controller, and in the daily use, of a right.of way through the lands'of appellee; that upon “said land, and nеar the right of way, are a few standing trees, varying in size; that the upper portions and tops of said trees extend over the defendant’s right of way, and near to and along a line perpendicular with the defendant’s railroad track; that becаuse of the location of defendant’s tracks and the close proximity of thе standing trees upon the plaintiff’s lands, at the time and immediately befere the cutting dоwn of the same, as mentioned in plaintiff’s petition, there was great and immediatе danger of .said standing trees falling upon the defendant’s right of way and said defendant’s railroad tracks * * *; that for the reason aforesaid the said defendant, by its emplоyes,, peaceably entered upon the plaintiff’s lands and cut down a few of said trees, standing as aforesaid and so interfering with the safe operation of defendant’s said trains; that in cutting down said trees it did so in a proper and workmanlike manner and in no way whatever destroyed or injured the timber in said trees, more than would naturally result from a careful cutting down of the same.”
Appellant thus admits that without notiсe or permission, it entered upon appellee’s land and cut down his growing timber. And this action counsel seek to justify.
The only reason given for fearing that the timber might fаll upon-the track was “the close proximity of the standing trees upon the plaintiff’s lands.”
Counsel refer us to no section of the statute authorizing the entry or the cutting оf the timber. •
By section 5160, R. S. 1894 (section 3907, R. S.
Neither have counsеl been able, as they confess, “to find a case anywhere in the books that passes directly upon this precise question.” Indeed, we should marvel very much if any one were found, whether owner of the fee or of a right of way, who ever befоre seriously sought to justify his entry upon another’s premises to cut down the timber, simply because it stood close to the line.
No doubt, if a boulder, a log or a decrepit tree threatened to roll or fall from adjoining land upon a railroad trаck or other highway, and there was no time to lose in seeking permission from the оwner, any one might enter1 upon the land to avert the danger. Mayhew v. Burns,
There is, however, no pretense of such a state of affairs in this case.
All peril may not be averted; it is the immediate and probable, not the remote and barely possible, that we are called upon to guard against. The tree along the roadside may grow on from year to year, increasing in strength even .into the centuries; yet a hurriсane may rise within an hour and overturn the stalwart oak upon the passing travelеr. It is not, however, such merely possible injury,- but an imminent and probable danger, that one may seek to avoid by entering unbidden upon the land of another.
As for trees that grоw so close to the line that their branches extend over the adjoining premises, there is no doubt that if injury is shown the adjoining owner may
The judgment is affirmed.