Baker v. Chicago, Milwaukee & St. Paul Railway Co.

Ellison, J.

This action is for double damages and arises under section 809, Revised Statutes, 1879. The defendant’s road passes through plaintiff’s field. He has a pasture on one side and a meadow on the other. A stream called Black Oak branch runs through the land and is crossed by the railroad in his field. The right of way is fenced up to the ends of the bridge over the branch; the bridge being about one hundred and fifty feet long. Cattle passed from the pasture under the bridge onto the meadow and did the injury complained of.

I. Without going into the question whether the railway company was liable to an action for damages resulting from not fencing across the channel of the stream proper, which was only from ten to fifteen feet wide, and leaving that out of consideration, it yet appears from the testimony that there was space under the bridge, on either side of the branch, which might properly have been fenced without injury or obstruction to the stream. We do not agree to the proposition that a railroad company need only erect such fences as will keep animals off of the track. If such was the law, the depressions to be found in all level fields and over which the railroad builds bridges or trestle work need not be fenced. The true interpretation of ■ the statute is that it requires not only that animals shall be fenced off the track, but also that they may be prevented from trespassing by passing over or under the track, where it may be fenced.

II. The question whether where the plaintiff owns the land on both sides of an unfenced railroad, one- side being cultivated and the other pasture, can knowingly turn his cattle in on the pasture side, and recover for the inevitable injury to his crop, was not raised. The judgment is affirmed.

All concur.'