BOSTON AND ALBANY R. R. Co.

v.

GEORGE P. BRIGGS.

(Advance Case, Massachusetts. March 30, 1882.)

Under the common law railroads are not obliged to fence their tracks. Where a railroad company is obliged by statute, enacted subsequent to the construction of the railroad, to fence its tracks, it cannot recover the cost of building the fence from the owners of land adjoining its right of way.

ALLAN, J.-The plaintiff built a fence along the line of its railroad at a place where it was required to do so by the St. of 1879, c. 205, § 1, and it brings this action, under § 2, to recover the cost thereof from the defendant. The only question made is, whether the duty of maintaining the fence was, by law or contract, imposed upon the defendant. The plaintiff has all the rights of the Western Railroad Corporation, whose railroad was located and constructed prior to the St. of 1841, c. 125. The road was located over land belonging to Moses A. Lee and Adelia M. Lee, his wife, as joint tenants by devise, and they conveyed the land taken by the location and on which the road is constructed to the corporation, and received from it payment for the land conveyed and for damages to the remaining land. Mrs. Lee survived her husband, and became sole owner by survivorship of the land adjoining that conveyed to the corporation and along which the fence is built. The defendant holds such adjoining land through mesne conveyances from her.

It is claimed that the defendant is under obligation to maintain a fence between his land and the railroad upon two grounds. First, that the law puts upon the owners of land adjoining a railroad constructed prior to the St. of 1841, c. 125, the duty of fencing against the railroad; and second, that the transaction between Mr. and Mrs. Lee and the corporation constituted a contract to maintain a fence binding upon all claiming the land under them. First, prior to the St. of 1841, c. 125, there was no statute providing for fences between the owners of land adjoining a railroad and the railroad, and the common law as to owners and occupiers of adjoining lands applied. Neither had a right to trespass himself or by his servants of cattle on the land of the other, and neither had a right to require the other to prevent trespasses by maintaining a fence. And the law was the same whether the land was held by the railroad company by purchase, as in the case at law, or was taken by the corporation and damages ascertained and paid as in case of land taken for highways. Rust v. Low, 6 Mass. 90; Stackpole v. Healy, 16 Mass. 33; Thayer v. Arnold, 4 Met. 589; Bridge

water v. Plymouth, 8 Cush. 475; Holbrook v. McBride, 4 Gray, 220; Eames v. Salem and Lowell R. R., 98 Mass. 560; Bronson v. Coffin, 108 Mass. 175.

Second, there is nothing in the deed from Mr. and Mrs. Lee putting upon them the obligation to maintain a fence, but it is contended that the receipt given by Mrs. Lee for the price of the land conveyed and for damages to the remaining land and for fencing is a contract to maintain a fence, and is a part of the transaction of giving the deed and settling for damages, which constitutes a contract which binds the land and operates as a covenant running with the land. It is difficult to see how any contract to maintain a fence can be found in this receipt. The statute incorporating the Western Railroad Corporation provides that damages for land taken shall be ascertained as in the case of land taken for highways. Special Laws 1833, c. 116, § 7. And the mention of fences in the receipt would seem rather to refer to an item of damage common in highway cases, and to acknowledge receipt of payment for an expense necessary to be incurred by the land-owner for the beneficial use of his remaining lands, than to impose a duty to maintain a fence upon him. Bridgewater v. Plymouth, 8 Cush. 476; Holbrook v. McBride, 4 Gray, 220.

But if the words can be assumed to import a contract, it is one personal to M. A. Lee. His wife was joint owner with him, and by survivorship became sole owner. The writing does not purport to bind her, and he had no authority to bind her by a contract. The only authority he had, and it is to be presumed the only authority he attempted to exercise, is that conferred by Special Laws 1833, c. 116, § 8, which authorizes the husband to release all damages for lands of his wife taken by the corporation. It is plain that he could not create an easement in the land, or make a covenant or contract which should bind the land as against his co-tenant or her grantees. But if M. A. Lee had authority and the words were sufficient to constitute a covenant running with the land, the writing is not under seal and is not recorded, and the right which the plaintiff claims is in effect an easement in the land. It is clear that the defendant is under no duty to maintain a fence by virtue of any contract made by the owners of the land when they received damages for the construction of the railroad. Moss v. Boston and Maine R. R., 2 Cush. 536.

It follows that neither the action against the defendant nor the proceedings to enforce a lien can be maintained. Exceptions overruled.

See note, p. 577.

THE LAKE SHORE AND MICHIGAN SOUTHERN RY. Co.

v.

MILO SHARPE AND JOSHUA M. NETTLETON.

(Advance Case, Ohio. May 9, 1882.)

A railroad company exercising its powers subject to the provisions of the present constitution, and required by the act of 1874 (71 Ohio L. 85), passed since its incorporation, to construct and maintain cattle-guards at places on its road where public highways are or may be constructed across its track, is not entitled to compensation for making or maintaining such cattle-guards.

ERROR to the District Court of Ashtabula County.

James Mason, Ashley Pond, Cyrus D. Roys, and O. G. GetzenDanner, for the plaintiff in error.

71 Ohio L. 86; Const. Art. 1, sec. 19; Railroad Co. v. Bloomington, 76 Ill. 447; Stats. of Ill. Ed. of 1880, 1152; Railway Co. v. Maurer, 21 Ohio St. 421; Potter v. Bunnell, 20 Ohio St. 150; Ferris v. Bramble, 5 Ohio St. 109; Railroad Co. v. Clinton Co., 1 Ohio St. 77; Bridgeport v. Railroad Co., 36 Conn. 255; Crossley v. O'Brien, 24 Ind. 325; Mills on Em. Dom. § 33, 43, 214; 1 Redfield on Rail., 400; People v. Railroad Co., 67 Ill. 118; Reg. v. Ely, 69 E. C. L. 843; Railroad Co. v. Moffitt, 75 Ill. 524; Driver v. Railroad Co., 32 Wis. 584; Welch v. Railroad Co., 27 Wis. 108; State Railroad Tax cases, 92 U. S. 698; Old Colony, etc., Co. v. Plymouth, 14 Gray, 155; Railway Co. v. Ogilvy, 2 Maeg, 229; Metropolitan Board Works v. McCarty, L. R. 7 H. of L. 256; Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. of L. 418; Selbourne v. Fishmonger's Co., L. R. 1 App. Cas. 662. They also commented on Railroad Co. v. Railroad Co., 30 Ohio St. 604, and cases there cited.

Theodore Hall and Edward C. Wade for the defendants in error. Railroad Co. v. Railroad Co., 30 Ohio St. 604; 71 Ohio L. 86; Railway Co. v. Dayton, 23 Ohio St. 517; 27 N. Y. 345; 21 O. S. 586; 26 Vt. 717; 27 Vt. 140; 2 Redfield on Rail. sec. 232; 2 S. & C. 1289; 66 Ohio L. 68; 69 Óhio L. 187.

OKEY, C. J.-In 1878, the commissioners of Ashtabula County, in pursuance of proper proceedings for the purpose, made an order for the establishment and construction of a county road in that county, which county road crosses the track of the plaintiff in error, the Lake Shore and Michigan Southern Ry. Co., on a level, and a further order was made awarding damages to the railway company, from which order the company appealed to the probate court. In that court the question was, whether the company was entitled to compensation for making and maintaining two cattle-guards across

its track, one on each side of the county road. The probate court excluded evidence tending to show the cost to the company in furnishing material and constructing such guards, and also the cost of maintaining the same, and the company accepted. On petition in error the court of common pleas reversed the judgment of the probate court for excluding such evidence, the district court reversed the judgment of the court of common pleas, and affirmed that of the probate court, and this petition in error is prosecuted by the company to reverse the judgment of the district court.

The proceeding for the establishment of this county road, and the assessment of damages to the owners of lands injured by the establishment of the road, and the trial in the probate court, were regulated by the act of 1853 (2 S. & C. 1289) as amended (S. & S. 671; 66 Ohio L. 68; 68 Ohio L. 111, § 10; 69 Ohio L. 186), which no doubt in a proper case, extended the right to damages as well to a corporation as to a natural person. See Rev. Stats. § 4699 et seq.

The Lake Shore and Michigan Southern Ry. Co. is a corporation having a line of railway in Ashtabula and other counties of this State, and exercising its powers subject to the provisions of the present constitution, and the laws relating to or affecting railways, enacted in pursuance of the constitution.

Among the provisions of the constitution are the following: "No special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the general assembly." Art. 1, $2. Corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed." Art. 13, § 2.

The act of 1874 (71 Ohio L. 85), which remained in force until 1880, when it was re-enacted in substantially the same form (Rev. Stats. § 3324), provided as follows: "That any railroad company, or other party having control or management of a railroad, the whole or a part of which is now or shall be in this State, is hereby required at their own expense, . . to make and maintain safe and sufficient crossings of good width, at every point where any public road, street, lane or highway may cross said railroad, that is, or may be used by the public, with the necessary cattle-guards on each side of said crossings, to prevent cattle or other domestic animals from endangering themselves and the lives of passengers by getting upon such railroads; and every such railroad company or party shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of any such . . crossing or cattle-guard, or any carelessness or neglect of said company, their agent or agents, in constructing or keeping the same in repair."

The provision that the company shall construct and maintain the cattle-guards at its own expense, is too plain for construction, and, looking to the whole act, manifestly applies to public roads there

after, as well as to roads theretofore constructed; and with respect to companies organized, as this is, under our present constitution, the validity of such a provision is no longer subject to doubt or question Railroad companies are clothed by the state with important powers and privileges. They employ locomotives which pass along their roads with great force and rapidity, and this necessarily, to some extent, places the persons and property of others in peril. Hence, the requirement that companies shall furnish and maintain such cattle-guards, is not to be regarded, in any just sense, as an invasion of their property rights, but a burden justly imposed for the public convenience and welfare. Railroad Co. v. Railroad Co., 30 Ohio St. 604; Pennsylvania Co. v. Wentz, 37 Ohio St. 333, 338; Buckley v. Railroad Co., 27 Conn. 479; Pierce on Rail. (ed. of 1881), 456 et seq. Plaintiffs in error rely on Railway Co. v. Bloomington, 76 Ill. 447, as opposed to this view. See also Morris Canal, etc., v. The State, 24 N. J. L. 62. But it does not appear that the constitution of Illinois or New Jersey, existing when the questions arose, contained any such provisions as those above quoted.

Judgment affirmed.

See note, p. 577.

CHICAGO AND GRAND TRUNK RY. Co.

v.

EMMA CAMPBELL.

(47 Michigan Reports. January Term, 1882.)

Special assignments of error are not required in certiorari cases which are removed to the Supreme Court by writ of error, those contained in the affidavit for certiorari being all that are essential.

The statute which requires railroad companies to fence their tracks has no application to station grounds and their approaches. Flint and Pere Marquette Ry. Co. v. Lull, 28 Mich. 515.

Therefore a railroad company is not liable for the value of a cow killed on one of the approaches to a station, by an engine run without negligence.

ERROR to St. Clair. Submitted Oct. 20. Decided Jan. 5.

Case.-Defendant brings error.

Reversed.

Louis C. Stanley for plaintiff in error. Act 43 of 1872 requiring railway tracks to be fenced does not apply to depot and station grounds to which the public must have access: P. C. & St. L. R. R. v. Bowyer, 45 Ind. 496; I. & C. R. R. v. Oestel, 20 Ind. 231; I. & St. L. Ry. v. Christy, 43 Ind. 143; C. C. C. & I. R. R. v. Crossley, 36 Ind. 370; I. P. & C. Ry. v. Crandall, 58 Ind. 365; J. M. & I. R. R. v. Beatty, 36 Ind. 15; 1 Redf. Railways, 469; T. W. & W. Ry. v. Chapin, 66 Ill. 506; I. C. R. R. v. Williams, 27

7 A. & E. R. Cas.-35