People ex rel. Lyman v. Ohio & Mississippi Railroad

Conger, J. The question presented by this record is, whether a railroad company, under the circumstances stated in the petition, and the laws of Illinois, in reference to fencing railroads, may build the fence required, anywhere except on the line between its right of way and the adjoining owner’s land. The portion of the section involved is: “ That every railroad corporation shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad (except at the crossing of public roads and highways and within the limits of cities and incorporated towns and villages) with gates or bars at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation when and where the same may become necessary, for the use of the proprietors of the ' lands adjoining such railroad, etc.” What is the proper construction to be given the words “ on both sides of its road,” as used in the foregoing section? “In construing statutes we are required to give to language, when the sense will bear it, the usual and popular meaning attached to the words employed.” Stuart v. Hamilton, 66 Ill. 255. Webster defines “side,” to mean “The margin, edge, verge or border of a surface: the bounding line of a geometrical figure, as the side of a field.” We hold the meaning of these words, “ on both sides of its road,” to be the margin or border of the entire ground used as a roadway. This gives certainty and completeness to all the sections in reference to fencing. If railroads may construe this language to "mean any imaginary line between the track and the margin of the right of way, why may not the adjoining land owner do the same for the other sections providing for the building of “ such fence” - by adjoining proprietors, clearly refer to the same fence spoken of in section one ? It is not to be supposed this law was meant to produce such absurd consequences, but that from the first to the fourth sections, inclusive, the same fence and the same place, were meant. In W., St. L. & P. Ry. Co. v. Zeigler, 108 Ill. 306, where the adjoining land owner intentionally built a fence two feet inside the company’s right of way and sought to recover from the company, the court held he could not, and say: “ To recover upon this penal liability of double the value of the fence, the statute should be strictly followed in the building of the fenc». The fence should be such a one as the statute requires and authorizes, built in the mode the statute contemplates. “Sucha fence is one on the sides of the railroad. The fence in question was not built on the side of the railroad, but was intentionally built two feet inside the right of way, two feet from the side of the road. * * * To entitle to a recovery under this statute the fence must be built where the statute requires it should be, on the side of the railroad. It was not so built here.” It is urged by appellant that the benefit to the adjoining land owner of using the fence constructed by the railroad as a partition fence, was one of the objects to be accomplished by the law, while appellee insists that the only purpose intended was the protection of the traveling public, and the stock of the neighborhood through which the road passes. The great and primary object of the statute was the increased safety to the traveling public, and the statute can be upheld only upon the ground of police regulations to more thoroughly secure such protection. While the power of the Legislature to require railroad companies to make partition fences, as such, could not be sustained, we see no good reason why, in exercising its police power, by requiring railroad companies to protect the public by fencing their roads, the Legislature might not have had in contemplation also the incidental benefit arising to adjoining land owners by such fences being built upon the sides of the railroad, thereby enabling such adjoining land owners to join their fences to them and using them as partition fences. It is also urged that in some cases there might be high embankments, deep cuts, or other physical conformation of the ground, making it difficult or impossible to comply with the law as we have construed it, and in such case a fence placed anywhere upon the right of way which would keep animals off the track, would be a compliance with the spirit and intention of the law. There is no such difficulty, however, presented by this record, and hence it is not necessary to express any opinion as to how far such a state of facts might excuse a railroad from a compliance with the literal language of the statute. We think the Circuit Court erred in sustaining the demurrer and dismissing the petition, and the judgment below will be reversed, and the cause remanded for further proceedings in accordance with the foregoing views. Reversed and remanded.