Towns v. Cheshire Railroad

21 N.H. 363 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

It is provided by the Rev. Stat. ch. 142, § 6, that if any railroad corporation shall neglect to keep a sufficient and lawful fence on each side of their road, any person against whose land such fence is insufficient may notify the agent of the corporation, and if the fence shall not be made sufficient within twenty days, the owner of the land may repair the fence and may recover of the corporation double the amount of the expense.

This section gives a remedy in terms, only to the owners of land adjoining the railroad, and it was accordingly held in the case of Woolson v. The Northern Railroad Corporation, decided in the county of Merrimack at the December term, 1848, that railroad corporations were not bound to build fences except against the land adjoining the road, and that they were not bound to make “ cattle-guards,” so called, where the railroad intersected a highway. In the case referred to, the action was case to recover the value of three calves killed on the railroad track by the engine, and it appeared that the animals escaped from the plaintiff’s land and wandered along the highway until they came to the track, where they were killed by the engine at a point distant from the plaintiff’s land.

Since the decision of that case, the act of July 13th, 1850, has been passed, making it the duty of railroad corporations to maintain cattle-guards, &c.; but as the injury sustained in this case was before the passage of the act, its provisions, are not applicable here, and the decision in Woolson v. The Northern Railroad Corporation settles that the plaintiffs, in this suit, cannot recover.

It is said in this case that the mare was rightfully in the highway. The rule of the common law is, that a man is bound to keep his cattle on his own land at his peril. Avery v. Maxwell, 4 N. H. Rep. 36; Mills v. Stark, Ib. 514. But a person is not bound to fence against cattle unlawfully in the highway. Tewkesbury v. Bucklin, 7 N. H. Rep. 518. In this case the mare escaped from the pasture. She was not driven along the road by her owner, for which purpose the road might lawfully be used, but was straying upon it, and went from it upon the track where she was killed. It cannot therefore he said that she was lawfully in the highway, and we are of opinion that there should he

Judgment for the defendant.