Morss v. Boston & Maine Railroad

Shaw, C. J.* The only question in the present case is, whether it was the duty of the defendants, to make and maintain fences on the plaintiff’s land, along the line of their railroad. The action is on the case, for negligence, in not making and repairing such a fence ; by means of which, as the plaintiff alleges, his cow escaped from his own land, and got upon the track of the railroad, and was killed by a locomotive engine. It is not stated at what time this railroad was laid out, but we assume, that it was laid out prior to the year 1841. By a statute passed in that year, (S'#. 1841, c. 125,) it was provided, that the county commissioners, in estimating damages for land taken for a railroad, might direct that fences and other structures should be built and maintained by the proprietors of the railroad, in relief of the owners of the land, and that such direction should not be altered or changed by the verdict of a jury. But no such requisition, in terms, previously existed; and, assuming as we do, that this road was laid out, and the damages assessed prior to the year 1841, the rights and duties of the parties must depend upon the preexisting provisions of the revised statutes. If it was then competent for commissioners to direct fences, culverts, or bridges. [539] to be made and maintained, it was in pursuance of their general authority to provide indemnity for the land owner; and such fences and other structures might often afford a more adequate and permanent indemnity, than an award of damages in money. But, as the law then stood, when an application for a jury was made and allowed, the whole question of damages was open for their consideration, and the order of the commissioners, directing the building of fences, as well as that for the payment of money, was vacated and annulled ; and not being reinstated by the jury, the order remained void, and the necessary inference is, that the whole damage was assessed in money. No duty, therefore, was imposed upon the corporation by that proceeding, to build or repair fences. We are of opinion, .hat the offer of parol evidence to prove that it was understood and agreed, before the jury, that such fences should be made, was rightly rejected. If such parol promise, made by persons authorized, and on good consideration, were available at all, it could only be enforced in an action by the person to whom it was made. But to allow it in this case, would be to give it the effect of a covenant running with the land, to be enforced by any subsequent owner. The fact, that the corporation had placed fences on the plaintiff’s land, along the line of the track, affords no evidence of a duty, on their part, in favor of the plaintiff, to make and maintain such fences; the defendants may have done what they did for the better security of their own trains, or for the safety of their conductors and passengers. Exceptions overruled. Footnotes [*] Wilde, J., did not sit in this cause.