Eames v. Worcester & Nashua Railroad

Colt, J. The plaintiff puts his right to recover on the ground that there existed a legal obligation upon the defendants to erect and maintain convenient gates, bars or other barriers, across the open way between his house and the highway, where it crossed the railroad. There was no evidence that the plaintiff was not in the exercise of due care, and none that the defendants were negligent in any other respect. The defendants acquired their title to the location over the plaintiff’s land by deed reserving the way in question. We do not find anything in the terms of the reservation, which imposes upon the corporation the duty alleged. It is to be construed by the condition of things at the time the deed was made. And although, strictly speaking, the way across the land conveyed was then first created by the reservation, (because a man cannot have an easement on his own land,) yet it is to be considered that the travelled path existed, long before, had practically defined limits, and was appropriated to a known use as a passageway. In common acceptation, it was an open and unobstructed way, and is referred to in the reservation itself as a way then existing. In the absence of express stipulation, the parties must be deemed to have intended to preserve and continue a way for the plaintiff’s use, as it then was, open and unobstructed; and this has been the construction put upon its terms, apparently, by the acquiescence of the parties, from the time the railroad was built. Nor is there anything in the St. of 1846, c. 271, reenacted in the Gen. Sts. e. 63, § 43, which requires the closing of this way [196] by gates and bars, contrary to the agreement and intention of the parties. By the statute, fences are to be erected on both sides of the entire length of ■ the railroad, but with convenient bars, gates and openings at such places as may reasonably be required, and except at the crossings of a turnpike, highway or other way. The road is not to be wholly inclosed by fences and gates ; but, as is provided subsequently in the same statute, sufficient barriers are to be constructed and maintained at such places as may be necessary, that is, where there are no fences and where it is practicable, to prevent the entrance of cattle upon the road. In other words, where openings are reasonably required, and at highway and certainly some descriptions of private crossings, especially those which are more important than mere farm crossings, the railroad is to be protected by cattle guards or culverts, built across or under the track, and which, while they do not obstruct it, will serve as barriers to prevent the entrance of cattle. The case finds that the defendants had constructed such cattle guards across their track, on both sides of the way in question; and there is nothing to show that they had not complied in this instance with the reasonable requirements of the statute. Judgment on the verdict.