Smith v. New York & Oswego Midland Railroad

Church, Oh. J. The principal point relied upon by the appellants is, that it was under no obligation to keep and maintain the farm crossing where the plaintiff was injured, and this is predicated upon the fact that the owner of the land had granted to it an absolute title to a right of way for the railroad across his land, without reservation or exception, which operated as a waiver of the statutory obligation to maintain a farm crossing. The statute (chap. 140, § 44, Laws of 1850), provides that “every corporation formed under this act shall erect and maintain fences on the sides of their road, of a strength and height of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road for the úse of the proprietors of lands adjoining such railroad.” The statute is general and applies to cases where the lands are acquired by purchase, as well as to those where they are acquired by the power of eminent domain. It may be assumed that the owner has power to waive or release this obligation in respect to his lands, but we do not think that a conveyance in fee of a right of way has this effect. Such a conveyance is not inconsistent with the duty imposed upon the corporation. It gives the company a title in fee to the land for their roadway, and nothing more. In the conveyance of this land there is not a word indicating a purpose to waive or release the right to enforce the duty to make a farm crossing, and the presumption is, that the parties intended to leave the duty unaffected. The obligation imposed is not connected with the acquisition of land by purchase or otherwise, but is enjoined independently, and upon the assumption of ownership, and without regard to the manner of acquisition. It is said that when lands are acquired compulsorily, farm crossings are deemed a part of the compensation. I am not prepared to assent to this proposition, but, if true, *62 the same is equally true in case of a purchase and voluntary conveyance, without restriction or reservation, and the expense of building the farm crossing would be deemed an additional consideration to that expressed in the conveyance. The defendant evidently regarded the duty incumbent upon it in this case, as it had sometime previous to the accident constructed and maintained the crossing in question, and the negligence imputed was the removal of planks between the rails, which it attempted to justify as a precautionary ■ measure against an accumulation of ice and snow in the winter. We approve the expression in 51 Hew York, 570, on this subject. The other points presented are of minor importance,, and are not tenable. If there was any liability, as has been conclusively established by the verdict, the amount of the recovery was moderate. The judgment must be affirmed. All concur; Miller, J., not sitting. Judgment affirmed.