Hanger v. Louisville & Nashville Railroad , 193 Ky. 419 ( 1922 )

Dissenting Opinion by

Judge Sampson.

The great injustice to landowners caused by the construction put upon -section 1789, to and including section 1799, Kentucky Statutes, by the majority opinion of this court, no less than the apparent unreasonableness thereof impels me to dissent from the holding, and to set out briefly my reasons for dissenting. The opinion holds the said sections of the statute to mean that where a railroad, by condemnation proceedings, forces its way through the farm of another and is assessed with the original cost of the fencing of its proportional part of the right of way, necessary along the same, to protect the railroad’s property as welh as that of the landowner, the railroad shall not be liable at any future time for ¡any part of the cost of rebuilding, maintaining or keeping’ in repair the said fence, but that this entire burden shall be borne by the landowner alone; that if the fence is destroyed by fire or ¡storm, or when it decays, ;as it will through the lapse of time, ¡the fence must be rebuilt by the farmer or landowner at his sole expense, although the fence is for the joint use and benefit alike of the railroad ¡and the landowner, and this burden, heavy and unreasonable as it is, must be sustained by the landowner and his descendants through the ages. I think ¡such a construction of the statute is wholly contrary to ¡our public policy and unwarranted by the language employed in the statute. By section 1789 it is expressly provided that a railroad “is hereby put on equal terms and obligations with other landowners owning adjoining lands in this Commonwealth. ’ ’ This is the first section of the ¡act relating to railroad fences, and is intended to declare the public policy of the state upon the subject. This provision is absolutely fair. The burden of building and maintaining fences along the right of way of a railroad is divided between joint landowners, the farmer and the railroad, for whose joint benefit the fence is constructed and maintained. The ¡cost of the original construction of a fence is the smallest part thereof. The great expense ¡comes in maintaining the fence through all the succeeding years. Such a fence is a partnership affair, just as between the lands of farmers, and the same rules should in equity be ¡applied. The ¡original act relating to. railroad fences was passed in February, 1893, and no doubt was intended to have the construction for which I contend, but this act, being ¡somewhat doubtful in its meaning, was amended M'arch 17', 1900, for the purpose of removing all doubt and of making certain the liability of the railroad for its share of the ¡cost of the maintenance ¡of the fencing on ¡the line between the right ¡of way and the adjoining landowners, this amendment reading: “All laws ¡and parts of laws governing the construction ¡of farm fences are held hereby to apply to railroad fences in all cases where, by the provisions of this act, railroad corporations are required to fence their right ¡of way.” This amendment to the original act relating to railroad fences was passed by the legislature seven years after the two sections, 1792 and 1796, on which the majority opinion is based, and therefore, supersedes those two sections, and makes the fence along the right of way of a railroad subject to all the laws governing the construction of farm fences, and this includes that part of the law which requires the j oint owners of ia fence to maintain it. The amendment above quoted was intended to prevent that construction of the statute which the majority opinion has placed upon it. What reason is there, or can there be, why a railroad company owning land which by law is required to be fenced, should be exempt from the cost of maintaining the fence which it built for its protection, and the entire burden placed'upon the adjoining lands? In good conscience, is there anything fair or reasonable about this? Must a landowner whose farm has been laid open by the construction of a railroad against his will, be required to build and maintain a fence along the right of way of the railroad for the advantage of the corporation? The mere statement of the proposition offends the sense of justice, and demands that if this is the construction to be put upon the sections as now contained in the statute, the lawmaking body of the state should make another and more effectual attempt to make the statute clearly mean, what no doubt the original framers thereof intended it should mean, that railroads owning rights of way are “put on equal terms and obligations with other landowners owning adjoining lands in this Commonwealth,” and that the sections of the statutes, relating to farm fences, be applied to railroad fences in all cases so far as it affects the maintenance thereof. Of course, where the railroad company is assessed in condemnation proceedings, not only with the cost of the original construction of the fence but for its maintenance also, this rule should not and would not apply, but where the railroad only contributes its pro rata part of the original cost of the construction of the fence, it should rightfully, as I believe under the statute as it now exists, be compelled to assist in maintaining the fence as do other joint owners of such improvements.

Por these reasons I respectfully dissent from the majority opinion of the court.