Fairchild v. New Orleans & Northeastern Railroad

Chalmers, J., delivered the opinion of the court. The railroad company sought and obtained condemnation of the land of appellant in order to lay its track. Having paid the price assessed by the jury, it entered on the land to erect its road-bed, and as -preliminary thereto built a cattle-gap at the intersection of appellant’s fence. Some days elapsed before the completion of the cattle-gap, and the present suit is brought both for the recovery of the statutory penalty for throwing down the fence and for injury to the cotton crop by intruding cattle during the interim. So far as injury to the crop is concerned, it was planted with a full knowledge of appellant after the institution of the condemnation proceeding. As to it, therefore, no recovery can be had, upon the familiar maxim of volenti non fit injuria. As to the claim for the statutory penalty for throwing down appellant’s fence, it is settled by the case of Viclcsburg and Meridian Railroad Co. v. Dixon, 61 Miss. 119, that the action will not lie, and th is suit was brought before the recent amendment by the legislature devolving the duty of building cattle-gaps upon the roads. Before that time the railroads had nothing to do with the erection of cattle-guards, and the owner who desired them must build them for himself. His compensation for so doing was embraced in the award of damages by the jury in the assessment for the right of way. Their assessment covered the total cost of parallel fences for the whole way, and the erection of cattle-guards in lieu of the fences was a concession by the railroads. There could, of course, be no claim for damages for an entry upon the right of way which by payment therefor had become the property of the railroad. [180] The court below properly excluded proof offered to show that both since and while the condemnation proceedings were going on the railroad company promised appellant to erect the cattle-guard. As before remarked, it was the duty of the jury to have embraced these damages in the award, and there was no offer to prove that they had not done so in the present case. The heavy damages given suggest that it had been done, and apart from this we must assume that the jury did its duty. If it were competent to prove that in fact it did not, no offer was here made to show that the damages were at all affected by a promise to build a cattle-guard. Affirmed.