18 Barb. 583 | N.Y. Sup. Ct. | 1854
The question upon which this case turns is, whether the defendants were bound under the circumstances, to make and maintain a fence or gate across the lane, on the farm occupied by the plaintiff, and where the injury com
The justice held, and so did the county court, that notwithstanding all this, the obligations resting upon the corporation to erect and maintain gates or bars across the lane, was still existing and imperative, and had not been in any degree waived or satisfied.
It has been held that this provision of the act of 1848 did not apply to railroad corporations then existing, who had previously acquired the right of way, and paid the landowner his damages. (Milliman v. The Oswego and Syr. Railroad Co., 10 Barb. 87 ; Marsh v. The N. Y. and Erie Railroad Co., 14 id. 370.) The evidence here, however, does not show when the defendants acquired their title. But admitting the liability of the defendants to make the fences through the farm in question, under the act, can it be said they are liable under that statute for injuries sustained in consequence of this lane being left open ? Clearly not. The statute is for the benefit and protection of the landowner; and if he refuses to have it done, or desires the corporation not to do it, or undertakes with the corporation to do it, himself, he cannot complain that it it has not been done. The omission of the corporation, under such circumstances, to do what the law otherwise made it their duty to perform, is not wrongful, and cannot be made the foundation of an action. A party may always waive a right in his favour created by statute, the same as any other. And
Johnson, Wells and T. R. Strong, Justices.]