for the principal and interest of said bonds," while in the act of 1852 the tax was to be collected "for the payment of the capital stock so subscribed," and stock was to be issued by the company to the persons holding certificates of the payment of this tax.

On the whole, we think the court below was right in holding that the issue of bonds in this case was not authorized by law. Different questions will arise if the railroad company, or any one who has been subrogated to the rights of the company, shall attempt to enforce the payment of the original subscription by the county. Judgment affirmed.

CORRY

V.

THE GREAT WESTERN RAILWAY COMPANY.

(L. R., 72; B. 322. April 9, 1881.)

The plaintiff in 1846 became tenant from year to year of land belonging to one G. In 1847 the defendants, a railway company, acquired part of the land in the exercise of their statutory powers, and by arrangement with G. paid him compensation in lieu of all accommodation works, including the right to have his land fenced from the railway, G. releasing the defendants from their statutory obligation in that respect. The defendants, however, made a fence of posts and rails between the land so occupied by the plaintiff and a ditch in the defendant's land adjoining the railway, and they planted a hedge on the side of the ditch nearest the railway itself, sufficient to prevent animals from straying thereon. They, however, neglected to keep up the posts and rails, and in consequence of their neglect to do so a cow belonging to the plaintiff, in 1879, whilst the plaintiff so continued in the occupation of the land under the original tenancy which had never been determined, fell into the ditch and was killed:

Held, affirming the decision of the Common Pleas Division, that the defendants were liable for the loss of the cow, for that their arrangement with the owner did not exonerate them from their liability under the Railway Clauses Act, 1845 (8 & 9 Vict., c. 20), s. 68, to maintain the fence for the benefit of the occupier, and so as to prevent his cattle from straying from his land.

Appeal by the defendants from the judgment of the Common Pleas Division, on a case stated by the judge of the Yeovil County court (reported 6 Q. B. D., 237, where the case is set out). The facts are shortly these: The plaintiff is yearly tenant to one John Goodden, of a farm, one of the fields of which abuts on lands belonging to the defendants, and through which is the defendants' railway. Between the field of the plaintiff and the lands of the defendants there exists a ditch which was made by the defendants at the time of the construction of their railway in or about 1846. When they made the ditch they erected a post and rail fence between it and the field of the plaintiff, and they planted on the

side of the ditch nearest the railway a thorn hedge, which is now a sufficient fence to prevent animals from straying on the railway itself. After this hedge had grown up, the defendants neglected to keep up the post and rail fence, and it has ceased to exist for many years, and in consequence of such neglect to fence the ditch from the plaintiff's field, a cow of the plaintiff's fell into the ditch in July, 1879, and was killed. The action was brought in the county court to recover £30 damages for the loss of this cow, and the county court judge gave a verdict and judgment for the plaintiff for that amount. It appeared that in the conveyance to the defendants (the railway company) in December, 1846, of the land required for the railway at the place in question, the grantors, including the said J. Goodden (the plaintiff's landlord), declared that the sum paid by the said company was not only in full satisfaction for the value of the hereditaments conveyed and for any damage sustained by the severing of the lands, but also "for all right, title, or claim to have any posts, rails, hedges, ditches, mounds, or other fences or works made or maintained by the company for separating the lands taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass or the cattle of the owners or occupiers thereof from straying thereout." Prior to and at the time of such conveyance to the company the plaintiff, who was no party to such conveyance, was such yearly tenant as aforesaid of the farm to the said J. Goodden, and he has continued to occupy the same on the same terms down to the present time.

The Common Pleas Division affirmed the judgment for the plaintiff which the county court judge had given, but gave the defendants leave to appeal.

The defendants appealed.

R. S. Wright, for the defendants. The obligation of the railway company to make accommodation works for the occupiers of lands adjoining the railway is imposed by s. 68 of 8 & 9 Vict., c. 20,* and by the proviso at the end of this section the company are relieved from making such works with respect to which the owners and occupiers have been paid compensation instead of making them.

*The 68th section enacts that "the company shall make, and at all times thereafter maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway, that is to say" (amongst others) "sufficient posts, rails, hedges, ditches, mounds, or other fences, for separating the land taken for the use of the railway from the adjoining lands not taken and protecting such lands from trespass, or the cattle of the owners or the occupiers thereof from straying thereout by reason of the railway," etc. "Provided always, that the company shall not be required to make any accommodation works with respect to which the owners and occupiers of the lands shall have agreed to receive and shall have been paid compensation instead of the making them."

The question is as to the duration of the company's obligation to make and maintain such works for a yearly occupier, whose landlord has been compensated and has expressly released the company from making or maintaining the same. It may be that the landlord, by being compensated, has undertaken to make and maintain these fences, and that the occupier must look to him, but at all events a yearly tenant has only a year's, or at most a two years', interest in the land. In the opinion of Lord Hatherley, when Vice-Chancellor, in the case of Cattley v. Arnold, 1 J. & H., 651; 28 L. J. (Ch.), 352, he has "a lease for a year with a growing interest during every year thereafter, springing out of the original contract and parcel of it." Had the company been dealing with the interest of the plaintiff in taking the land compulsorily under the Lands Clauses Act, 1845 (8 & 9 Vict., c. 18), the sections from 119 to 122 show that they would at most have been obliged to compensate him for one or two years, and though Rogers v. Kingston-upon-Hull Docks Co., 34 L. J. (Ch.), 165, is an instance in which such a tenant has been considered to have had an equitable interest for something more than a year, it is plain that the railway company, when they acquired the land in 1846, were not bound to provide a fence for the plaintiff for a longer period than two years, and certainly there was no liability on their part that would extend beyond the time which the post and rail fence they had erected in fact lasted. Suppose the plaintiff had been only a weekly tenant (and the case of Reg. v. Inhabitants of Thornton, 2 E. & E., 788; 29 L. J. (M.C.), 162, is an authority that the continuance of a weekly tenancy is governed by the same principle as that of a yearly tenancy) it surely could not have been said that the defendants, after they had bought up the landlord's interest, would have been bound for all these years to have maintained this fence for the plaintiff.

Petheram, Q.C., for the plaintiff. The plaintiff was the tenant of John Goodden of this land at the time of the conveyance to the defendants of the land for their railway, and the tenancy which then existed has ever since continued, so that the estate of John Goodden in the land has always been in reversion. Then the plaintiff was no party to the deed, and no compensation was given to him for his interest. Now, by s. 68 of 8 & 9 Vict., c. 20, the defendants were bound to make and maintain certain works, which would include the fence in question, "for," as the section says, "the accommodation of the owners and occupiers of lands adjoining the railway," and the plaintiff being such occupier could, either. by mandamus or by going before the justices, have compelled the defendants to erect this fence. It is said that the defendants were not bound to maintain it for more than two years, but that would have been only if they had got the plaintiff's landlord to determine his tenancy; but they did not do so, and if the plaintiff was entitled to have this fence made in 1846 he is equally entitled to

have it now. He has never contracted himself out of that right or received any compensation for it, and it is not even a right for which the defendants had any power to compel him to accept compensation, or to release.

R. S. Wright, in reply.

Cur. adv. vult.

April 9. BRAMWELL, L. J.-I think this judgment must be affirmed. The plaintiff was an occupier with a right to have a fence between his land and that of the railway company, and his tenancy and his right under it to have such fence have continued, as it seems to me, to the present time. It is conceded that if he had a lease, say for fifty years, though determinable at six months' notice, he would have had this right. He had not such lease, but was tenant only from year to year, determinable at siz months' notice. But still the tenancy is the same, and his right against the landlord is the same. His landlord cannot be taken to have given up any right which the plaintiff had as his tenant, and I think there would be a hardship upon the plaintiff if it were otherwise, because he, the plaintiff, was no party to the agreement by which his landlord gave up the right to fencing. His landlord did not choose to give him notice to quit, and the defendants did not stipulate that the landlord should do so. Then the plaintiff must be taken to have given up this right either without any compensation at all, which would be unreasonable, or else it must be said it was his own fault if he had none, because he might have given notice to quit; but he might say, "I do not want to give notice to quit, I prefer being where I am; and yet that is no reason why I should be there on worse terms.' It seems to me that the law is on his side, and that there is some reason in it. Mr. Wright contended that it was hard on the company in the case of a tenant from year to year. The company, under the statutes, would compensate him upon the footing that his interest was for one year only, or, at all events, for not more than two years, and therefore, if these defendants had purchased this right of the tenant, they would not have had to give him above two years' purchase for it, and during those two years they have in fact fenced the land. That is true. agree that, on the one hand, there is some plausibility in saying that it is a hard case upon the plaintiff, and that, on the other hand, there is some plausibility, perhaps more, for saying it is a hard case upon the defendants; but we must see what the law is, and that is in favor of the plaintiff.

BAGGALLAY, L. J.-I agree with Mr. Justice Lindley in thinking this a case not altogether free from difficulty. As I apprehend the facts of the case, the ditch and the land between the ditch and the quickset hedge, became the property of the railway company at the time the railway was constructed. They not only had that portion of the land on which the railway was made, but they had

the land on the further side of the ditch. It therefore became their duty under s. 68 of the Railway Clauses Act (8 & 9 Vict., c. 20), to make and maintain a sufficient fence between that portion of the land which they acquired and the land adjoining it; but then the same section contains a proviso that they "shall not be required to make any accommodation works with respect to which the owners and occupiers of the lands shall have agreed to receive, and shall have been paid, compensation instead of the making them."

Now, in this case, it would appear from one of the deeds, that an agreement was come to with the owner of the lands, which in effect deprived him of the right of insisting upon either the original making or the maintaining of any such fence as this; and the question we have to determine is whether he, the owner, having inade that agreement, and the plaintiff being at the time only a tenant from year to year, the tenant can insist upon the maintenance of that fence. It may be that at the time the purchase was made the plaintiff was interested in the land actually taken, and in estimating its value the valuation was based upon the consideration that his tenancy was only from year to year. But it does not appear to me the same thing when one considers what the plaintiff's rights are as regards the remainder of the land. So far as regards the land taken his tenancy was put an end to; so far as regards the land which was not taken it appears to me his tenancy has continued ever since a tenancy from and not a to year, year new tenancy commencing every year. No doubt it would have been in the power of the railway company to have required such tenancy to be put an end to. If that had been done I should have agreed with Mr. Wright, that a person who acquired a fresh tenancy after the owner had given up his right to the accommodation works, could not enforce such a demand as is made by the plaintiff in the present action; but, in my opinion, although this is only a tenancy from year to year, it continues until it is properly determined, and it never having been determined, I think the plaintiff is entitled to succeed. The judgment of the court below must therefore be affirmed.

LUSH, L. J.-The plaintiff was the occupier of land adjoining land of the railway company, and there was no fence between his land and the company's ditch. The action is brought for the loss of a cow which came to its death by straying from the plaintiff's land and falling into the ditch. Now, if the land ought to have been fenced by the railway company then it is clear the company are liable for the loss of the cow.

That brings us to the question, was the railway company under an obligation to make and maintain a fence so as to prevent the straying of cattle, and that turns entirely upon s. 68 of the Railway Clauses Consolidation Act (8 & 9 Vict., c. 20). That section says,