Woolson v. Northern Railroad, 19 N.H. 267

Woolson v. Northern Railroad

19 N.H. 267 | Superior Court of New Hampshire | 1848

Woods, J.

It is provided by the Revised Statutes, eh. 142, §§ 6, 7, that if any railroad corporation neglect to keep a sufficient fence on each side of the railroad, any person against whose land such fence is insufficient, may require the corporation to build such fence, or pay the expense of so doing, with a penalty, except in cases in which the corporation may have agreed with the owner of such land for building and maintaining such fence. In such case, the corporation may, upon the neglect of the land owner, build the proper fence, and recover of him the necessary expense of so doing. Such is the substance of the statute law applicable to this case, so far as the statutes have imposed any peculiar duty in this regard upon railroad corporations.

The object of this statute was, in the first place, to settle the burden of the partition fence between the corporation’s land and that of the adjoining proprietor upon the former, and to point out the means by which the corporation might be compelled to build or pay for building such fence. And secondly, to enable the corporation to make an agreement with the proprietor to support the fence, and to point out the course by which he might be compelled to keep his engagement, when the corporation might deem the safety of its property and of the passengers and freight upon the road to require the fence to be built or repaired.

The statute relates to matters exclusively between the railroad corporation and the owners of land bordering upon the road. It imposes no duty in which the public in general have an interest, or of which the public have any means to enforce the discharge.

Ordinarily and aside from any statute, we apprehend that It is not incumbent upon any individual or corporation to fence his ground against the highway, nor is any.one liable for injuries to cattle that, in passing rightfully over high*270ways, stray from them by reason of the insufficiency or want of such fences, and become lost or damaged. Such fences the land owner is supposed to build for his own protection against the casual and unavoidable incursions of cattle, rightfully driven along the public way, and may, perhaps, be necessary, moreover, to enable him to sustain an action for damages of such a nature against the owners of such cattle. But as to this, it is unnecessary to give any opinion in this ease.

We are not aware of any principle of law which imposes upon railroad corporations more onerous or different duties, in this respect, from those which pertain to other corporations or to individuals. The greater danger of injury to the animals trespassing upon the railroad than that which they incur in trespassing upon a field or a garden, cannot vary the principles of law. The owner of a field who does not fence it, cannot, by the old law, complain that cattle, lawfully driven along a way leading through his crop, 51 snatchingly ” devour his grass and corn. But the license was never so far deemed a right of the owner of cattle to suffer and permit them to wander into the field, that the proprietor became chargeable with the damages which incidentally befal the cattle in such excursions. Avery v. Maxwell, 4 N. H. Rep. 36; Tewksbury v. Bucklin, 7 N. H. Rep. 518.

The plaintiff’s field is not so situated, in relation to the defendants’ railroad, as to authorize him, under the statute, to require the defendant to' construct any fence. It does not appear that the cattle were rightfully upon the highway. If they were, it was not the duty of the defendants to keep them there ; and even if it was not a trespass, on the part of the plaintiff, to suffer his cattle to go upon the railroad of the defendants, the excusable straying must be regarded as at the risk of the owners, and not of the corporation.

It does not appear that any corporate duty was neglect*271ed, or that the ordinary duty of individuals required of the owners of the railroad any thing more than was done.

Judgment for the defendants.