In 1853, Dan Hill, from whom the plaintiff derives title, conveyed land to the railroad company by a deed which provided that the grantee was to furnish Hill, his heirs and assigns, with two convenient crossings (the precise spots to be thereafter designated by Hill) over its railroad, one of which, that now in question, was to be a crossing at grade. Soon after the date of the deed, Hill indicated the spot where this should be located, and a crossing was there built on its own land by the railroad company, adapted to the grade of the road as then fixed. It was not obstructed by gates or bars, either then or for many years thereafter; and it is on account of such obstruction, erected in 1884, that the plaintiff seeks in this action sufficient damages to establish his right to an unobstructed passage.
Unless the railroad company is released from its obligation by reason of the peculiar character of the business it conducts, or by the general laws, especially those imposing on it certain duties as to maintaining fences, the plaintiff has just ground of complaint for the obstruction.
The defendant objects, that, if a gate cannot be put at a private crossing, the railroad company cannot protect itself against such private crossing becoming de facto a public one ; that since 1857 a public grade crossing can only be made upon the adjudication of the county commissioners that the public necessity so requires, and since 1876, only, in addition to such adjudication, by the consent of the railroad commissioners; and that the efficacy of these statutes is destroyed if every owner of a private way may force the railroad to make it de facto public. That every free and open private way tends to become a public one, or to subject those who maintain it to responsibility for its condition by reason of the apparent invitation to travel thereon which it holds out, may be true; but a party entitled thereto is not, on that account, to lose the benefit of the contract which his predecessor in title has made.
The statutes, by the ample powers given to the public authorities in regard to a “ travelled place ” in towns or cities, have provided carefully for protection to those who travel either on the railroad or on public or private ways connected therewith. Pub. Sts. c. 112, §§ 163-166. An extremely broad term has been used, that every description of way might be included.
The St. of 1846, c. 271, was in force when the contract with Hill was made; by it, all railroad corporations were obliged to fence their ways at such places as may “ reasonably be required.” The statute at present in existence imposes the duty of fencing their railroads, omitting the words u reasonably required.” While both require a highway or other public way to remain open, under each statute these fences are to be constructed “ with convenient bars, gates, or openings ” therein, so far as private ways are concerned, barriers to prevent the entrance of cattle thereon being provided where it is necessary or practicable to do so. Pub. Sts. e. 112, § 115. Because a railroad corporation may employ either of these three means to render a private crossing available, it cannot be inferred that, when it has lawfully agreed to employ one of them, it may of its own volition employ another. If it deemed that public safety required a different use of the crossing, or that it should cease to exist as an unobstructed and open crossing, the corporation could itself have invoked the action of the public authorities. For these reasons, we are of opinion that the plaintiff is entitled to nominal damages for the obstruction complained of by him.
The question remains, by whom the expense of raising the approaches to the crossing, rendered necessary by the change in the railroad grade, shall be borne. The defendant was bound to
Judgment for $1 damages.