Lawton v. Fitchburg Railroad , 62 Mass. 230 ( 1851 )

Metcalf, J.

As the agreement of the parties mentioned no time within which the fences were to be erected, the law required that they should be erected within a reasonable time; and the defendants do not deny that they failed to erect them within such time. There was, therefore, a breach of the agreement, when this action was commenced, and the plaintiff then had a right to recover damages for the breach. This right was not impaired nor affected by the subsequent erection of the fences by the defendants, without the plaintiff’s consent or approbation. 8 Wend. 567. And so the jury were instructed. They were further instructed, that the plaintiff was entitled to recover, as damages, the sum which it would fairly cost to erect the fences according to the agreement. The correctness of these instructions is questioned by the defendants’ counsel; because, as he suggests, they authorized the jury to give greater damages than the plaintiff may have suffered by the defendants’ omission to erect the fences. But there is no legal force in this suggestion. The injury to the plaintiff’s land, by reason of its remaining unfenced, is not the ground of the damages which he sought to recover in this action. The defendants took his land for their railroad, and he amicably settled with them for such taking, upon their agreeing to put up fences on the sides of their road. The erection of the fences by them was a part of the consideration of the settlement for the land taken by them. The fair cost of the fences was the amount of that part of such consideration. The plaintiff chose to have fences between his land and the railroad; and if the defendants had not agreed to erect them, he would or might have demanded of them, as a condition of settlement, the sum necessary to enable him to erect and maintain them himself. Whether, therefore, there was any necessity for these fences, in order to protect his lands, or whether he has suffered any injury in his lands from the want of fences, is no part of the present inquiry. He offered no evidence on these points, at the trial. If he had proved such injury, another question might have been raised respecting the rule of damages. As the case stood, at the trial, the instructions given to the jury were, in our opinion, correct. Judgment on the verdict.