of that State hold that, though cattle-guards are, strictly speaking, a part of the fence required by the double liability statute,—yet, as that act is penal and to be strictly construed, and the subject of cattleguards is provided for by a separate statute, single damages only can be recovered for a failure to erect them.113

§ 2055. Duty to Fence where the Railroad Runs along the Side of the Highway or Another Railroad.-The fact that a public highway runs along the side of a railroad track does not, of itself, show a valid reason why a fence should not be maintained between the road and the track, but rather a stronger reason why the track should be fenced.114 Moreover, a railway company is not relieved from the statutory liability for failure to fence, by the fact that it is the middle one of several railroads parallel and contiguous to each other.115 But in Connecticut it has been held that one of two parallel railroad companies is not obliged to build a fence between them, even though the other has failed to fence either side of its tracks.116

117

§ 2056. Duty to Fence In Abandoned Tow-Path, Highway, etc.11 -Where a railroad was built upon the tow-path of an abandoned canal, it was held that it might be fenced without infringing any of the rights of the public, and that unless it was so fenced the company would be liable.118 Where a highway has not been in a condition. for use by the public, and has not been used for thirty-six years, the presumption of its abandonment is justified; the right to its full use by the owner is restored, and the duty to fence is imposed on a railroad company using a portion of it for its track.119 But a mere nonuser of the highway by the travelling public during a period of two years is not sufficient to raise a presumption of abandonment, and does not impose the duty of fencing upon the defendant.120

113 Moriarty v. Central Iowa R. Co., 64 Iowa 696. As to the duty to provide cattle-guards at the limits of depot grounds, see post, § 2075, note.

11 Indianapolis &c. R. Co. v. McKinney, 24 Ind. 283; Indianapolis &c R. Co. v. Guard, 24 Ind. 222; Jeffersonville &c. R. Co. v. Sweeney, 32 Ind. 430; Illinois &c. R. Co. v. Trowbridge, 31 Ill. App. 190; Louisville &c. R. Co. v. Shanklin, 94 Ind. 297; Missouri &c. R. Co. v. Eckel, 49 Kan. 794; s. c. 31 Pac. Rep. 693; Rozzelle v. Hannibal &c. R. Co., 79 Mo. 349; Maher v. Winona &c. R. Co., 31 Minn. 401; Emmerson v. St. Louis &c. R. Co., 35 Mo. App. 621. VOL. 2 THOMP. NEG.-45

115 Kelver v. New York &c. R. Co., 126 N. Y. 365; s. c. 27 N. E. Rep. 553; 37 N. Y. St. Rep. 485; 10 Rail. & Corp. L. J. 15.

116 Gallagher v. New York &c. R. Co., 57 Conn. 442; s. c. 18 Atl. Rep. 786; 5 L. R. A. 737; 40 Am. & Eng. Rail. Cas. 197.

117 This section is cited in § 2073. 118 Whitewater Valley R. Co. v. Quick, 30 Ind. 384.

119 Jeffersonville &c. R. Co. V. O'Connor, 37 Ind. 96; Louisville &c. R. Co. v. Shanklin, 94 Ind. 297.

120 Indiana &c. R. Co. v. Gapen, 10 Ind. 292; McNamara v. Minneapolis &c. R. Co., 95 Mich. 545; s. c. 55 N. W. Rep. 440.

705

§ 2057. Duty to Fence where the Highway and Track Cross Each Other at Acute Angles.-Where a public highway and a railroad track cross each other at a very acute angle, the latter must be fenced up to the intersection of the highway and track, and not merely to the point where the highway intersects the line of the company's right of way.121

§ 2058. Duty to Erect Gates and Bars at Farm Crossings.-In many cases the statute itself provides for gates and bars at farm crossings. In the absence of express provision, a general direction to fence includes the erection of such gates or bars. They are regarded as part of the statutory fence, and the railway company is under the same duty to erect them in the first instance and keep them in repair when once erected, as it is in regard to any other part of the fence.122

§ 2059. Duty to Keep them Closed, Whether upon the Company or the Land-Owner. 123-As these gates and bars are part of the statutory fence, the duty of the railroad company to keep its fence in repair requires it to use due diligence to keep them closed.124 Reasonable care, however, is all that is required. It is not bound to keep a special patrol sufficient to discover immediately when gates are open. It can not be charged with negligence until it has had reasonable time to

11 Andre v. Chicago &c. R. Co., 30 erin, 30 Neb. 318; s. c. 46 N. W. Rep. Iowa 107.

make the discovery, or has failed to take proper action after notification.125 But it is also the duty of the adjoining owner, for whose benefit and convenience gates are maintained at farm crossings, to keep them closed; and he has no redress for stock killed which escape upon the track through a gate that has been left open.126 This does not alter the railway company's liability to others than adjoining owners; as to them, it must use due diligence to keep such gates closed;127 though in one State it is held that the owner of trespassing animals can have no higher right than the owner of the land through which they got upon the track.12 An express statutory provision, however, imposing upon the adjoining owner owner the duty of keeping gates closed at crossings connecting parts of his farm,129 has been construed to relieve the railway company from liability to third persons for stock entering upon the tracks at such crossings and killed without negligence on its part.130 This exemption is confined to the farm crossings referred to in the statute. Thus, where an adjoining owner owns land on one side of the track only, and uses a gate to reach a private side track owned by him and connected with the railroad, the company is liable to a third party for

125 Chicago &c. R. Co. v. Sierer, 13 Ill. App. 261; Chicago &c. R. Co. v. Patterson, 72 Ill. App. 428; Wait v. Burlington &c. R. Co., 74 Iowa 207; s. c. 37 N. W. Rep. 159.

126 Ranney v. Chicago &c. R. Co., 59 Ill. App. 130; Evansville &c. R. Co. v. Mosier, 114 Ind. 447; s. c. 17 N. E. Rep. 109; 14 West. Rep. 299; Savage v. Chicago &c. R. Co., 31 Minn. 419; Hook v. Worcester &c. R. Co., 58 N. H. 251; Diamond Brick Co. v. New York &c. R. Co., 58 Hun (N. Y.) 396; s. c. 34 N. Y. St. Rep. €37; 12 N. Y. Supp. 22; Bond v. Evansville &c. R. Co., 100 Ind. 301; Louisville &c. R. Co. v. Goodbar, 102 Ind. 596; Manwell v. Burlington &c. R. Co., 80 Iowa 662; Lemon v. Chicago &c. R. Co., 59 Mich. 618; Texas &c. R. Co. v. Glenn, 8 Tex. Civ. App. 301; San Antonio &c. R. Co. v. Robinson, 17 Tex. Civ. App. 400; Richardson v. Chicago &c. R. Co., 56 Wis. 347: Simmons v. Poughkeepsie &c. R. Co.. 2 App. Div. (N. Y.) 117; s. c. 73 N. Y. St. Rep. 148; 37 N. Y. Supp. 522.

127 Wabash R. Co. v. Williamson, 104 Ind. 154; Baltimore &c. R. Co. v. Kreiger, 90 Ind. 380; Connolly v. Central Vermont R. Co., 4 App. Div. (N. Y.) 221; s. c. 38 N. Y. Supp. 587;

Dayton v. New York &c. R. Co., 81 Hun (N. Y.) 284; s. c. 62 N. Y. St. Rep. 747; 30 N. Y. Supp. 783; Louisville &c. R. Co. v. Goodbar, 102 Ind. 596; Galveston &c. R. Co. v. Wesendorf (Tex. Civ. App.), 39 S. W. Rep. 132.

128 Adams v. Atchison &c. R. Co., 46 Kan. 161; s. c. 26 Pac. Rep. 439; Rouse v. Osborne, 3 Kan. App. 139; s. c. 42 Pac. Rep. 843. See also Estes v. Atlantic &c. R. Co., 63 Me. 309. This view would probably prevail wherever the statutory fence is regarded as a division fence: See ante, § 2047. And the same result would be reached where allowing cattle to run at large is a defense to the statutory action: See ante, § 2017.

120 Burns' Ind. Stat., §§ 5320-5327. 130 Louisville &c. R. Co. v. Etzler, 119 Ind. 39; s. c. 19 N. E. Rep. 615; Louisville &c. R. Co. v. Thomas, 1 Ind. App. 131; s. c. 27 N. E. Rep. 302; Louisville &c. R. Co. v. Hughes, 2 Ind. App. 68; s. c. 28 N. E. Rep. 158; Pennsylvania Co. v. Spaulding, 112 Ind. 47; s. c. 13 N. E. Rep. 268; 11 West. Rep. 98; Hunt v. Lake Shore &c. R. Co., 112 Ind. 69; s. c. 11 West. Rep. 107; 13 N. E. Rep. 263.

stock killed by its negligent failure to close the gate, though it was put in under a contract with the adjoining owner, whereby he agreed to keep it closed.131

§ 2060. Whether Such Statutes Require Cattle-Guards at Farm Crossings. It has been held, in New York, Illinois, Indiana, Mississippi and Missouri, that the statute does not require cattle-guards to be put in at farm crossings.132

§ 2061. Duty to Fence where the Railway Company Owns the Adjoining Lands.-Under the interpretation given to the English statute, there arises still another class of exceptions. The statute provides for fences "separating the land taken for the use of the railway from the adjoining lands not taken." The court has held that this does not require the company to fence against their own lands.133 The American cases do not, in general, justify such a doctrine. It is only when such adjoining land of the company is used by the public that the company is relieved of the obligation to fence its road.134 But a statute of Indiana has received an interpretation similar to the one given to the English law.135 There, the court holds that a railroad company is not bound to fence its track, where the result of such fencing would be to cut it off from the use of its own property,-buildings, machine-shops, wood-sheds, etc., although such buildings or sheds may not be in present use.136

131 Wabash R. Co. v. Williamson, 3 Ind. App. 190; s. c. 29 N. E. Rep. 455. See also Louisville &c. R. Co. v. Hart, 2 Ind. App. 130; s. c. 28 N. E. Rep. 218; Louisville &c. R. Co. v. Hughes, 2 Ind. App. 68; s. c. 28 N. E. Rep. 158; Louisville &c. R. Co. v. Consolidated Tank-Line Co., 4 Ind. App. 40; s. c. 30 N. E. Rep. 159.

182 Bartlett v. Dubuque &c. R. Co., 20 Iowa 188; Brooks v. New York &c. R. Co., 13 Barb. (N. Y.) 594; Peoria &c. R. Co. v. Barton, 80 Ill. 72; Pennsylvania Co. v. Spaulding, 112 Ind. 47; s. c. 13 N. E. Rep. 268; 11 West. Rep. 98; Dent v. St. Louis &c. R. Co., 83 Mo. 496; Vicksburg &c. R. Co. v. Dixon, 61 Miss. 119 (holding that the fact that guards have been put in at a farm crossing at the request of the owner without asserting a legal right to the contrary, does not make the company liable for a failure to repair after being notified of a defect); Sather v. Chicago &c. R. Co., 40 Minn. 91; s. c. 41 N. W. Rep. 458; Missouri &c.

R. Co. v. Hanacek (Tex.), 55 S. W. Rep. 1117; Omaha &c. R. Co. v. Severin, 30 Neb. 318; s. c. 46 N. W. Rep. 842; 45 Am. & Eng. Rail. Cas. 122; 1 Neb. L. J. 316.

133 Marfell v. South Wales R. Co., 8 C. B. (N. S.) 525; s. c. 7 Jur. (N. S.) 240; 29 L. J. (C. P.) 315; 2 L. T. (N. S.) 629; 8 Week. Rep. 765; Roberts v. Great Western R. Co., 4 C. B. (N. S.) 506; 4 Jur. (N. S.) 1240; 27 L. J. (C. P.) 266; 1 Fost. & Fin. 29; Matson v. Baird, 3 App. Cas. 1082.

134 Klock v. New York &c. R. Co., 62 Hun (N. Y.) 291; s. c. 42 N. Y. St. Rep. 200; 17 N. Y. Supp. 120. But the company is not liable to its tenant for a failure so to fence: Potter v. New York &c. R. Co., 38 N. Y. St. Rep. 798; 15 N. Y. Supp. 12.

185 Post, 2067.

136 Indianapolis &c. R. Co. v. Oestel, 20 Ind. 231; Jeffersonville &c. R. Co. v. Beatty, 36 Ind. 15.

§ 2062. Immaterial whether the Company Owns the Fee or Merely an Easement in the Right of Way.-This statutory duty to fence their roads is not affected one way or the other by the fact that the company owns the land upon which its track is situated, or has only an easement in the right of way.'

137

§ 2063. Construction of the Statute as to the Time within which the Company must Fence.-Another class of exceptions to the general rule arises where the company is not required by the statute to fence its track until the expiration of a certain period of time after the road is open for travel. In Illinois, this time is six months.188 In Wisconsin, a statute required the La Crosse and Milwaukee Railroad Company to fence its track in parcels, each to be fenced within. one year after it was put in operation.139 Recoveries for injuries occurring within the time limited are governed by common law principles.140 Negligence must be alleged and shown. In the absence of a specific provision, it seems that it is the duty of the company to keep its track fenced from the time it is opened for use.141 The obligation begins as soon as the necessity for protection to the owner of land and stock arises,142 and is not postponed till the road is sufficiently constructed to bring material from a distance.143 Where the statute makes the company liable for stock killed while "operating" roads uninclosed with a legal fence, it is not essential to such liability that the road be completed and open to traffic. If construction trains are in service, the road must be guarded by a fence, and the company can not claim exemption on the ground that it should have a reasonable time after construction of the road in which to build fences.144

§ 2064. Failure to Keep the Statutory Fence in Repair Creates a Liability only in Case of Negligence.145-Though a railway company 137 Toledo &c. R. Co. v. Pence, 68 Co., 28 Vt. 103; Continental ImIll. 255.

138 As to pleading this exception, see post, § 2169. Although the fence may have been built for several years, there is no duty to keep it in repair, unless the road has been in operation six months: Duggan v. Peoria &c. R. Co., 42 Ill. App. 536. See also Baltimore &c. R. Co. v. McElroy, 35 Ohio St. 147.

139 Gen. Laws Wis. 1856, ch. 122, § 15.

140 Gilman &c. R. Co. v. Spencer, 76 Ill. 192; Rockford &c. R. Co. v. Connell, 67 Ill. 216; McCall v. Chamberlain, 13 Wis. 637.

141 Comings v. Hannibal &c. R. Co., 48 Mo. 512; Clark v. Vermont &c. R.

provement Co. v. Ives, 30 Mich. 448.

142 Blewett v. Wyandotte &c. R. Co., 72 Mo. 583; Silver v. Kansas City &c. R. Co., 78 Mo. 528; s. c. 47 Am. Rep. 118; Cobb v. Kansas City &c. R. Co., 43 Mo. App. 313; Silver v. Kansas City &c. R. Co., 21 Mo. App. 5; s. c. 3 West. Rep. 284 (obligation arises as soon as fences on land, over which track is laid, are removed).

143 Gordon v. Chicago &c. R. Co., 44 Mo. App. 201.

144 Glandon v. Chicago &c. R. Co., 68 Iowa 457; Chicago &c. R. Co. v. Totten, 1 Kan. App. 558; s. c. 42 Pac. Rep. 269.

145 This section is cited in §§ 2059,

2079.