McKee v. C., N. O. & T. P. Ry. Company's Receiver

JUDGE HAZELRIGG nELivEUEn the opinion oe the ootjbt. By section 1790, Kentucky Statutes, it is made the duty of railroad companies and of owners of lands adjoining the company’s right of way to construct and maintain, except in specified eases,-a good and lawful fence to the extent of one-half each along the division line of the right of way and the land of adjoining owners; and by section 1793 of the. [255] statutes it is provided: “That all corporations and persons owning or controlling or operating railroads as aforesaid shall erect and maintain cattle guards at all terminal points ■of fences constructed along their lines, except at points where such lines are not required to be fenced upon both sides and at public crossings. But where there is a private passway across said railroad the land owner, for whose benefit it is kept open, shall bear one-half of the expense of cattle guards and gates, the former to erect the gates, the corporation or person operating the railroad to erect the cattle guards.” The contention of the appellant, as set out in his. petition below, is that it was the duty of the railroad company operating its line through his farm to construct and maintain cattle guards at the points where the road entered his farm and where it left it, and that the terminal points referred to in the statutes are the points where the division fences of the various property owners approached the railroad or come up to the right of way. And that while the company did construct such guards when it built its road in 1876, it had, in 1894, torn them away, by reason of which his farm had been trespassed upon by straying stock and his crops destroyed, to his great damage, etc. We think this contention is based on a misconception of the statute. The fences “along their line” at the terminal points of which cattle guards were to be erected, are those running parallel with the railroad. The purpose of the law is to have the roadway entirely fenced in for the protection of the traveling public, though protection to stock is also secured by the statute. The provision “except at points where such lines are not required to Ibe fenced on both' sides,” shows this [256] to be the proper construction. For it is where the right of way is not fenced that the land owners, with division fences between them, would need cattle guards; and where the statute would require them, if its purpose was to compel the company to enclose the lands of adjoining owners. The remedy of the land owner is to build his part of the fence along the right of way and inquire the company to do likewise. Then no cattle guards will be needed except at public and private crossings, and this the statute requires; and at terminal points in the parallel fencing along the right of way, and this is what the statute demands. These points are not necessarily between the. property lines of the various owners, but are wherever the lateral fencing for any reason stops, and where, from the want of cattle guards at the stopping points, the road under fence would be left open to trespass. Wherever the track leaves ground which the company is bound to fence and passes on to ground which the company is not bound to fence, there must be cattle guards placed so as to completely fence in the track. The company not being under any legal obligation to maintain cattle guards at the points of entering and leaving the complainant’s farm, merely because they were dividing lines with his neighbors, might remove them at any time. These guards were not division or partition fences between his lands and those of the company. They were wholly on the lands of the company, and the rights of the parties are not to be regulated by the provision of law as to division fences on farm lands. The averments of the amendment as to the failure of the •company to maintain cattle guards at certain public crossings on public roads, running on the north and south of the plain [257] 'tiff’s farm are indefinite, and it is not made certain how such failure affected his rights or caused him any loss. The judgment sustaining a demurrer to the petition is . affirmed.