In Ohio, if the owners of cattle permit them to run at large in the vicinity of an uninclosed railroad track, and do not choose to avoid danger to their cattle by keeping them within their own inclosures, they can ask no more than that the agents of the railroad company, in the legitimate conduct of its business, exercise ordinary and reasonable care to avoid damaging the property of others.1 § 240. Laws to compel railway companies to fence.In Massachusetts, under the provisions of General Statutes, Chap. 33, Secs. 42, 43, it is incumbent upon railroad companies to make and maintain fences, suitable for the benefit and security of the land-owner, and of travelers by the companies' trains, upon both sides of the railroad, for its entire length.3 And the only rulings of the Courts in Maine have been to the same effect.3 In Vermont, the obligations upon railroad companies to build a fence along their road only extends to the owner or rightful occupier of the adjoining fields, and not to mere trespassers there; that if one suffer his animals to run at large, and they cover damages therefor, though they escaped from a properly fenced inclosure without his knowledge, and were on the highway, at its intersection with the track, at the time of the accident." 1 C. O. R. R. Co. v. Lawrence, 13 Ohio St. 66; but in Kerwhacker v. Cleveland C. & C. R. R. Co. 3 Ohio St. 172, it was held: "There is no law in Ohio requiring railroad companies to fence their roads, but when they leave their roads open and uninclosed, by sufficient fences and cattle-guards, they take the risk of intrusions on their roads by animals running at large, as do other proprietors who leave their land uninclosed; so that the owner of domestic animals, in allowing them to be at large, takes the risk of their loss, or injury to them by unavoidable accident; and the company, in leaving its road unprotected by an inclosure, runs the risk of animals at large getting upon the road, without any remedy against the owners of the animals." 2 Keliher v. C. R. R. R. Co. 107 Mass. 413. Plaintiff's cow got through a dry culvert, upon the track, and was run over; the company might have so arranged the culvert as to prevent cattle passing, but did not do so, as in the dry season it was passable for stock; there was no pretense of negligence in running the train, but the road was held liable, without any proof of negligence. (Rogers v. N. R. R. Co. 1 Allen, 16.) But if the loss occurs through the negligence of the owners of animals, by allowing them to be unlawfully on land, from which they stray, through an unsuitable fence, upon the track, and are killed, the company is not responsible, although the fence was one which the company ought to have maintained in serviceable condition. (Eames v. S. & L. R. R. 98 Mass. 560.) 3 Wyman v. P. & K. R. R. 46 Me. 162; Gilman v. E. & N. A. R. Co. 60 Me. 235. get upon lands where the owner of the animals has no right to pasture them, and thence upon the railroad track, through insufficient fences, the owner cannot claim to be reimbursed his loss by reason of trains running down his stock.1 In Michigan, the decisions of the Courts are in accord with those of the State of New York. The necessity, on public and private grounds, for the protection afforded by fences along both sides of the railroad, being perceived, the duty of so keeping the road fenced is imposed upon the company, and it is primarily liable for injuries which result from its failure to do so.2 In Minnesota, it has been held that the common-law rule, that he who pastures animals must fence them in, applies between the owners of stock and railroad companies; that the law does not require railroad companies to fence in their roads, and that he who suffers his animals to run at large does so at his own risk of having them stray upon railroad tracks, and be killed by passing trains.3 § 241. Damage to live-stock by engines.-General propositions as to the liability of railroad companies for injuries done to animals by being run into by trains may be deduced from the very numerous decisions, to the effect that where the owner of the animals is in fault, or it does not appear that the company was bound to have its road fenced, the corporation is not liable, unless, after the animals are discovered, the persons running the train might, by the exercise of reasonable care, have avoided the collision.4 The obligation to make and maintain fences, both at common law and under the statutes, applies only as against the owners of the fields through which the road runs, and, except in the 1 Bemis v. C. & P. R. R. R. Co. 42 Vt. 378, 379; Jackson v. R. & B. R. R. Co. 25 Vt. 150. 2 B. C. & E. S. R. R. Co. 21 Mich. 402. 8 Locke v. St. P. & Pac. R. R. Co. 15 Minn. 350. 4 Scott v. W. & R. R. 4 Jones' Law, 482. "Most of the better considered cases certainly adopt this view of the subject, and some, perhaps, go even further in favor of exempting the company from liability, where they were not originally in fault, and the animals were exposed to injury through the fault of the owner, mediately or immediately." (1 Redfield on Railways, 465; I. & C. R. R. v. Caldwell, 9 Ind. 397.) States where there are no restrictions, by common-law rule or statutory provisions, against cattle running at large, the company is not responsible for injury to animals which, being without right upon lands adjoining the road, get upon the track through insufficient fences.1 1 The proposition appears to be generally conceded that cattle, running at large in the public road, are to be deemed improperly there; that the public have but an easement to travel over it; that "the public interest in a highway comprehends the right of every individual to pass and repass upon it, in person and with his property, but confers no right to use it as a sheep-walk, or pasture ground for cattle.' "On this strict ground, I think the town regulation, assuming to authorize cattle to run at large, was wholly void." (Per Beardsley, C. J. in T. R. R. Co. v. Munger, 5 Denio, 255, 264; 15 Johns. R. 453; Wells v. Howell, 19 Johns. 385; Stackpoole v. Healey, 16 Mass. 33; Holladay v. Marsh, 3 Wend. 142-47.) And if animals escape from their owner's premises into the public road, "and thus get upon the track of the railway, where it intersects the highway, and are killed, the company is not liable." (1 Redfield on Railways, 465; Towns v. C. R. R. Co. 1 Foster, 363; Sharrod v. L. & N. W. R. 4 Exch. 580; Halloran v. N. Y. & H. R. R. Co. 2 E. D. Smith, 257.) But see Convin v. N. Y. & E. R. R. Co. 13 N. Y. 44. Section 44 of the general railroad act was under consideration. The language is: "Every corporation formed under this act shall erect and maintain fences on the sides of their road," etc. "Until such fences and cattleguards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon." Some oxen, which did not belong to the owner of land adjoining the railroad, got into the highway; thence upon land through which the railroad ran; and thence, there being no fences, upon the track, and were killed by a passing train. The action was damages by the owner of the oxen against the company. It was held that the design of the section was to require railroad companies to inclose their track within substantial fences, and to guard it by the ditches called cattle-guards from the approach of animals wandering on the highways; and that one method provided for securing that object is the provision charging the companies with damages for all injuries done to animals, where they have disregarded the statute; and that it is not material from whence, or under what circumstances, the animals come upon the track, provided they are enabled to get there by the absence of fer ces or cattle-guards. But in the late (1872) case of Indianapolis Etc. R. R. Co. v. Harker, 38 Ind. 557, it was held that the general rule is that, in the absence of some statutory regulation for allowing animals to run at large, every man shall fence in his own stock. Hence, where it appeared that plaintiff had knowingly permitted his cattle habitually to run at large in the immediate vicinity of a railroad, where fencing was not required, it was held that he was guilty of negligence; and, if his stock was killed, he had contributed to the injury, and could not complain, there being no proof of wantonness in the management of the train. § 243. § 244. The common-law rule as to animals found doing damage. § 242. The right to detain animals, damage feasant, was one which existed at common law, and it was recognized and regulated by statute. The proceeding was always purely remedial. The party distraining was authorized to detain the property in pledge for the payment of his damages. By seizing it at the time and on the premises where the injury was committed, he was enabled to secure redress for an actual wrong against an unknown or irresponsible owner. If, however, the animal escaped from his premises, even though he was in fresh pursuit, his right of distress was lost. The party making the seizure was required to have the damages promptly appraised by the fence-viewers, upon a view of the premises and the examination of competent witnesses; they were bound to certify the amount of damages done, and thereafter, within twenty-four hours, he who had taken up the beasts was required to put them into the public pound, where the owner could find and retake them on replevy, or by paying costs and expenses. The party distraining was bound to give notice to the owner, if known, that he might have an opportunity to so replevy or redeem his property. The remedy by distress was cumulative, and satisfaction obtained in this mode was a bar to an action for damages.1 13 Woodeson, 226; 3 Bac. Abr. Title Distress, F; 3 Black. Com. 6; 2 Wait's Law and Pr. 778; Colden v. Eldred, 15 Johns. 789. Practically, at common law, the remedy by distress was of but little value, as, if the owner of the animals remained obstinate, and would neither redeem nor replevin, it became no remedy at all, unless some statute, authorizing the sale of the pledge, in the nature of an execution, effectuated and completed the remedy.1 § 243. The common-law rule as to animals found damage feasant. Under the common law, and throughout the United States where that system prevails, a land-owner was permitted to be his own avenger or to minister redress to himself by distraining another's cattle damage feasant. Otherwise, it might be impossible, at a future time, to ascertain whose cattle they were that committed the trespass. And when cattle were distrained for that cause, it became the duty of the distrainor to put them into some inclosure denominated as a pound, which might be a common or a special pound-overt or covert-and there keep them. If in a special pound covert, as in the impounder's barn, he was bound to properly feed and care for them. When thus impounded, they were kept in the nature of a pledge until satisfaction was made, unless the owner (replegiavit) took back the pledge by a replevin writ. Thus the distress was the common-law security.2 In the statutes of most of the States are to be found special provisions and enactments upon the topic, either abrogating the common-law rules, or declaring them and making special provisions for their application. As a general proposition, where a remedy existed at common law and the statute creates a new remedy in the affirmative without a negative, express or implied, a party may still seek his remedy at common law. Particular remedies are to be followed 13 Bl. Com. p. 10. "And so the law still continues with regard to distresses of beasts taken damage feasant and for other causes not altered by act of Parliament, over which the distrainor has no other power than to retain them till satisfaction is made." Ibid, p. 14. "This kind of distress, though it puts the owner to inconvenience, and is, therefore, a punishment to him, yet if he continues obstinate and will make no satisfaction or payment, is no remedy at all to the distrainor." (Rockwell v. Nearing, 35 N. Y. 317.) 23 Black. Com. 6, 13; Cutts v. Hussey, 15 Maine, 237. |