Tombs v. Rochester & Syracuse Railroad

By the Court, Johnson, P. J. The question upon which this case turns is, whether the defendants were bound under the circumstances, to make and maintain a fence or gate across the lane, on the farm occupied by the plaintiff, and where the injury com 585 plained of happened, under the provisions of the general railroad act of 1848. It appears by the testimony of Dr. Wells, the plaintiff’s landlord, that it was agreed between him and the defendants that they should fix the crossings of the lane in question, and that he was to occupy it the same as he had ever done before, which was as an open lane. That he built the fence through the farm, for the defendants, and they paid him for it. That some three years before the trial, the agent of the defendants requested him to go on and fix the crossing at the lane, as he wished to have it, and that he did so, and the defendants paid him for it. That nothing in particular was ever said about gates or bars across the lane, but that he never would have consented to have the road come there, if he had supposed they were to erect bars or gates there. The justice held, and so did the county court, that notwithstanding all this, the obligations resting upon the corporation to erect and maintain gates or bars across the lane, was still existing and imperative, and had not been in any degree waived or satisfied. It has been held that this provision of the act of 1848 did not apply to railroad corporations then existing, who had previously acquired the right of way, and paid the landowner his damages. (Milliman v. The Oswego and Syr. Railroad Co., 10 Barb. 87 ; Marsh v. The N. Y. and Erie Railroad Co., 14 id. 370.) The evidence here, however, does not show when the defendants acquired their title. But admitting the liability of the defendants to make the fences through the farm in question, under the act, can it be said they are liable under that statute for injuries sustained in consequence of this lane being left open ? Clearly not. The statute is for the benefit and protection of the landowner; and if he refuses to have it done, or desires the corporation not to do it, or undertakes with the corporation to do it, himself, he cannot complain that it it has not been done. The omission of the corporation, under such circumstances, to do what the law otherwise made it their duty to perform, is not wrongful, and cannot be made the foundation of an action. A party may always waive a right in his favour created by statute, the same as any other. And 586 where the landowner himself undertakes to do what the statute obliges the corporation to perform, and does it in a manner to suit his own convenience, at the expense of such corporation, he is bound to accept his own performance as a satisfaction to himself and all those who occupy under him, of the obligations of the corporation. This being so, the plaintiff was guilty of carelessness in suifering his cow to run in the lane where she would be liable to get in the way of the defendant’s engines and cars, and cannot recover. The judgment of the1 county court, and of the justice must therefore be reversed. [Monroe General Term, September 4, 1854. Johnson, Wells and T. R. Strong, Justices.]