| Ark. | Jul 22, 1905
This was an action by a landowner and his tenant for the destruction of the tenant’s crop by cattle destroying it, owing to the railroad company failing to rebuild, replace and maintain fences pursuant to a contract between the railroad and the landowner. The contract sued upon was in a deed to a right of way over the land in which this is part: “Said railway company to reconstruct fences when same are on right of way, and to provide necessary road crossings and stock guards.” There is no allegation and no evidence to impeach the above-quoted clause as being the correct written evidence of the contract.
The court gave three instructions, which will be set out by the Reporter, together with the substance of the pleadings. The first instruction is erroneous in that it authorizes a recovery for a tort when the complaint counted alone upon a contract. The second instruction is erroneous in that it states that if the jury find from the evidence that in accepting the deed the railroad company agreed to fence its right of way, and in consequence of its failure the crop was left exposed to the inroads of stock, etc., the company was liable; whereas the deed alone evidenced the contract, and it was to construct fences when the same are on the right of way, which may be a very different matter from fencing the right-of-way.
The third instruction, is, like the first, based on the theory that the action is one of tort for breaking or throwing down the fences. The railroad company had a right, in the construction of the road, to break and throw down the fences, and agreed to recon- ' struct them when they were on the right of way. The plaintiff's action must be, under the complaint and evidence, confined to a breach of the stipulation in the deed, and it cannot be made broader than the parties made it; nor can a tort arise from the railroad breaking the fences, for this contract clearly contemplates such to be done, and required their reconstruction. For a failure to comply with its terms the company is liable, and to its terms the action must be limited.
Reversed and remanded for new trial.