some of the counsel. Three men signed this contract. Plaintiff was entitled to all the covenants in the contract. The railroad company was bound to dig a ditch over the lands of these three men who signed this contract; to dig a ditch deep enough and wide enough to carry off surplus water, and defendant was bound to keep the ditch open. Defendant was bound to dig and keep open such a ditch along the west side of the roadway, over the lands of these three men. But defendant was not bound to dig or keep open any ditch on any other land. Defendant might stop the ditch at the south line of the lands of these three men; it was not bound to furnish an outlet for the water; the contract does not require it to do so. Therefore, if the ditch was continued further south and to the river, and it became obstructed on the land of Tatham (lying south of the lands of the three men who signed this contract), and such obstructions were, by defendant, permitted to remain unreasonably, and they did prevent the drainage of plaintiff's land, and did damage plaintiff's land, crops, and other property, defendant is not liable to plaintiff for such damages in this action. Plaintiff cannot complain of obstructions to said ditch if the obstructions were located on Tatham's land, because the terms of this contract do not extend beyond the lands of those who signed it, Madden, Munson, and Mattingly."

This part of the charge was duly excepted to. There was a verdict for the plaintiff; and a motion for a new trial interposed by him having been overruled, judgment was rendered on the verdict.

The judgment was affirmed by the district court. The object of the present petition in error is the reversal of these judgments, on the ground that the court erred in the construction of the agree ment in the part of the charge above quoted.

W. H. Ball, for plaintiff in error.

O'Neill & Goddard and M. M. Granger, for defendants in

error.

WHITE, J.-The court erred, in our opinion, in the construction of the agreement.

The stipulation that the "railway company shall make such culverts and crossings as may be necessary to enable the parties hereto to reasonably occupy their lands, to carry off surplus waters, etc. ;" and the stipulation "that upon the hill side of said line a sufficient drain shall be made for the discharge of the drainage," form necessary parts of the plan or means agreed on for draining the lands of the plaintiff on the hill or west side of the railroad. A ditch or drain on the west side of the railroad, although "kept open and in good condition perpetually," as provided for in the agreement, would not accomplish the purpose of carrying off the surplus water and draining the lands. For this purpose a culvert was also

necessary, to carry the water accumulating in the ditch across the railroad towards the river.

No particular place was specified in the agreement for the location of the culverts; and their location would seem to be immaterial, as respects the draining of the plaintiff's lands, provided that, in connection with the ditch, they carried off all the surplus water.

But if the company saw proper to make the culvert on the lands of Tatham, below the lands of the plaintiff and the lands of the other parties to the contract, it became the duty of the company, under the agreement, to keep the ditch open to the culvert, so that the drainage from plaintiff's land might be discharged through it. Judgment reversed and cause remanded for a new trial.

JOHN JONES, Respondent,

V.

JESSE SELIGMAN et al. as Trustees, etc., Appellants.

(81 New York Reports, 191.)

The remedy of an owner of land crossed by a railroad, for a failure on the part of the corporation to comply with the provision of the Railroad Act of 1854 (§ 8, ch. 282, Laws of 1854), requiring railroad corporations to erect and maintain fences on the sides of their roads, and farm-crossings, is not confined to an action for damages given by said act; but he may enforce the performance of this duty.

A railroad corporation in the discharge of its duty of providing farm crossings is not vested with any absolute discretion as to the number or character of the crossings. The power must be exercised in a proper manner, having due regard to the necessities and the convenience of the owner of the land, who may maintain an action to compel the corporation to erect necessary and suitable crossings; or where crossings have been made which are insufficient, to construct additional ones; and in such an action the question as to the propriety of additional crossings is one of fact for the court.

The court has power to direct the construction of a crossing under the tracks of the road.

The award and payment of damages in proceedings to condemn land taken for the road does not preclude the former owner from maintaining an action to compel the corporation to fulfill the duty imposed upon it as to crossings.

Where a railroad has been taken possession of under a mortgage, by trustees for bondholders, and is being operated by them, and where, by the mortgage, power is given to them to make repairs and additions to the road, they may be held for a performance of the duties imposed by said provision.

(Argued April 14, 1880; decided June 1, 1880.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in

favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 16 Hun. 230.)

This action was brought to compel defendants, as acting trustees of the bondholders of the New York, Boston and Montreal Ry. Co. to build and maintain fences on each side of the lands taken by them from plaintiff in proceedings for that purpose, on which the road of said company, where it crossed plaintiff's farm, is constructed, and also to compel defendants to construct a farm crossing under the tracks of said road.

The court found in substance that said New York, Boston and Montreal Ry. Co. obtained title to the lands described in the complaint, for the purpose of constructing and operating a railroad thereon, and did partially construct the road; that the company executed and delivered to the defendants and another, a mortgage, whereby the land was conveyed to them as trustees for certain bondholders; and that, as trustees, the defendants took possession of the land, completed the construction of the railroad, and have operated it since that time; that no fence has been built between the plaintiff's land and the railroad, and that a crossing under the surface of the railroad, of sufficient size to allow cattle and horses to pass freely to and from a creek to the west of the road, is necessary at the place where the railroad-bed crosses an old farm road.

John N. Whiting, for appellants. The proceedings for condemnation contemplated and provided for every form of damage and inconvenience of the owner. (Embury v. Conner, 3 Comst. 511; Clemens v. Clemens, 37 N. Y. 74; Demarest v. Darg, 32 id. 281; Sixth Ave. R. R. Co. v. Kerr, 72 id. 332; Van Schoick . Del. and Rar. Canal Co., 1 Spen. (N. J. Supreme Court) 249; Trenton Water Power Co. v. Chambers, 2 Beasley (N. J. Chancery), 199; Dearborn v. Boston and Montreal R. R. Co., 4 Fost. (N. H. Superior Court) 179; Searle v. Lack. and Bloom. R. R. Co., 33 Penn. 57; 38 id. 281; 8 id. 445; 57 id. 87; 37 id. 469; 47 id. 428; Henry v. Dubuque and Pacific R. R. Co., 2 Clarke (Iowa), 288; R. and S. R. R. Co. v. Bradbury, 6 How. 467; 13 Barb. 169; 17 Wend. 649; 19 id. 678; 16 Barb. 68, 100, 273; 56 id. 456.) As to the number of crossings, the railroad company was invested with a sound discretion and its decision is final, unless actual injustice is done. (Wademan v. Alb. and Sus. R. R. Co., 51 N. Y. 568.) Plaintiff has no general equity which he can enforce through an application to the court, to compel the railroad company defendants to perform the public duty imposed as to fencing by the statute. (Smith v. Lockwood, 13 Barb. 209; Dudley v. Mayhew, supra, 3 N. Y. 15; Clarke v. Rochester, Lockport and Niagara Falls R. R. Co., 18 Barb. 350; Atkinson v. Newcastle, etc., Water-works Co., 36 Law Times [N. S.], 761; re

ported in the "Register" of November 30, 1877. Consult, also, Talmadge v. Renss. and Sar. R. R. Co., 13 Barb. 493; and Brooks v. N. Y. and Erie R. R. Co., id. 594.) This statute as to fencing, being in derogation of the common law, is to be strictly construed, and plaintiff is entitled to the benefit of all doubts. (Millard v. Lake Ontario, etc., R. R. Co., 9 How. Pr. 238; McCluskey v. Cromwell, 1 Kern. 603.) As no rights existed in the plaintiff except by statute, it is indispensable that the statute should be specifically designated, or the statutory facts explicitly averred. (Miller v. Roessler, 4 E. D. Smith, 234; Bogardns v. Trinity Church, 4 Paige, 178, 197; affirmed, 15 Wend. 111; Goelet v. Cowdrey, 1 Duer, 132.)

C. B. Herrick for respondent. Defendants are bound to erect and maintain fences on the sides of this railroad as asked by plaintiff. (Tracy v. The Troy and Boston R. R. Co., 38 N. Y. 433; Laws 1853, ch. 174, § 16; In re Rensselaer and Saratoga R. R. Co., 4 Paige, 553; Laws 1854, ch. 282, § 8; Camp v. Bates, 13 Conn. 1; Smith v. Lockwood, 13 Barb. 209; Dudley v. Mayhew, 3 N. Y. 9; Shepard v. Buffalo, New York and Erie R. R. Co., 35 id. 641; People v. Saratoga and Schenectady R. R. Co., 2 Amer. Law Journal [N. S.], 158; Staats v. Hudson River R. R. Co., 3 Keyes, 196; see opinion at page 198; Wademan v. Albany and Susquehanna R. R. Co., 51 N. Y. 568.) The proper relief as to the fences may be granted either in an equity action or by a writ of mandamus. (Rex v. Marquis of Stafford, 3 T. R. 651; Storer v. Great Western Ry. Co., 3 Ry. Cases, 108; People v. Mayor, etc., of N. Y., 10 Wend. 395; Buck v. City of Lockport, 6 Lans. 251; People v. Saratoga and Schenectady R. R. Co., supra; Wademan v. Albany and Susquehanna R. R. Co., 51 N. Y. 568.) Defendants must also construct a farm crossing as adjudged herein. (Laws of 1850, ch. 140, § 44; Wademan v. Albany and Susquehanna R. R. Co., supra; Smith v. New York and Oswego Midland R. R. Co., 63 N. Y. 58; Wheeler v. Rochester and Syracuse R. R. Co., 12 Barb. 227; Clarke v. R. L. and N. F. R. R. Co., 18 id. 350.)

MILLER, J.-This action was brought for equitable relief against the defendants as acting trustees of the bondholders of the New York, Boston and Montreal Ry Co., and the complaint asks that the defendants be adjudged to specifically perform the duties imposed upon them by law in respect to the matters set forth, and that they be required to build and maintain fences on each side of the lands taken by them from the plaintiff for railroad purposes, and described in the complaint, on which their railway is constructed, and which runs through the plaintiff's farm, in the manner required by law, and also a farm-crossing under said railroad. Section 8 of the General Railroad Act (ch. 282, Laws of 1854) requires, that "every railroad corporation shall, before the

lines of such railroad are opened, erect and thereafter maintain fences on the sides of their roads of the height and strength of a division fence, as required by law, with openings or gates or bars for the use of the proprietors of the land adjoining such railroad," and to construct and maintain cattle-guards at all said crossings, and declares that so long as such fences and cattle-guards shall not be made, and when not in good repair, the corporation and its agents shall be liable for all damages, and when such fences and cattle-guards shall have been made and kept in good repair, such corporation shall not be liable for any such damages, unless negligently and wilfully done. This provision was intended as a protection to the public who might travel upon the railroad, as well as to the owners of lands adjoining, from injuries which might arise by reason of a neglect to comply with its terms. While the duty imposed upon the corporation may be regarded to some extent as intended for the benefit of the public, it was not designed to limit the redress to be obtained for injuries sustained to a mere statutory remedy, as is the case in reference to penal enactments. It is obvious that the statutory remedy would be entirely insufficient in all cases to secure full and ample indemnity against the hazard, inconvenience and danger, arising from an exposure of lands adjoining a railroad, and to the consequences which might result from an absence of fences, cattle-guards and other adequate means of protection. These are not only essential for the protection of the railroad, but indispensable to the owner for a proper and reasonable enjoyment of his rights. Without fences, his land would run to waste; and without crossings, the owner would be unable to work and use his land in a manner which would tend to promote his interests and confer upon him the advantages to which he is fairly entitled. He should, therefore, be allowed a proper remedy to enforce his right to fences and crossings; and as it is conceded by the appellants' counsel that an equitable action may be maintained for such a purpose, it is not necessary to discuss that ques

tion.

The right to compel a railroad corporation to erect and maintain fences along the sides of its road is quite clear, but the question arising as to the number and character of crossings to be made is of more difficulty. The solution of it must necessarily depend upon the facts and circumstances connected with the location of the farm, the necessity of the crossings and the accommodation of the proprietor of the land in the enjoyment of the same for ordinary farming purposes. In regard to the crossings in the case considered, the judge found that three farm crossings over the surface of the lands were necessary at the several places where they now exist, as completed since the commencement of this action, of which the southern and middle were sufficient, and that the northern needs a better graded approach to the east. He also found