Page:Federal Reporter, 1st Series, Volume 4.djvu/876

 862 FEDERAL REIORTEB. �Wasd V. Paducah & Memphis E. Co. (Circuit Court, W. D. Tennessee., 1880.) �1. Pbactice in Equitt — Rbfbkbncb. — A case should not be referred to �a master uatil the issues made by the pleadings have been settled by a decree. It is not proper to try those issues upon exceptions to the master's report. �2. ToBTS— Damagk to Crops bt Animals of thb Owner— WHEif Ad- �JomiNO Pbopeietob Liablb. — If crops be damaged by the animals of the owner, an adjoining proprietor can only be liable when, by some prescription, contract, or statutory duty, such liability ia imposed on him. �3. Railhoads — Fence Law— Cattle-Guakds.— The ordinary fence laws �of Tennessee do not apply to railroad companies, and there is neither a common-Iaw nor statutory obligation on them to construct or main- tain cattle-guards for the protection of crops growing on the culti- vated lands through which their roads pass. Neither was the act of 1875, c. 64, intended to apply to railroad companies, although the land on which the track is built is within " one general enclosure," made by joining the fences of the farmer to the cattle-guards of the railroad. These laws were intended for adjoining land owners engaged in agriculture, who are mutually benefited as well as bound by them. �4. Same— Implibd Cokteact. — In the absence of a contract, or charter �obligation, or some statutory duty to maintain cattle-guards, none will be implied from the fact that the company bas constructed them along the line of road where it enters and leaves cultivated flelds, unless the lapse of time has raised the presumption of a grant or coveuant. �B. COHTRIBUTOST NEGlilOBNCI! — SlRATINa ANIMALS— D0TT DP THB OWN- �BK OP THE Gbop. — The owner of crops, having knowledge that stray- ing animals may pass over defective cattle-guards and destroy the crops, cannot recover for their destruction without using every means an ordinarily prudent person would use to protect them. It ia con- tributory negligence not to do this. �In Equity. �Finlay e Peters, for petitioner. �Gantt e Patterson, for defendants. �Hammond, D. J. The practice adopted in this case, of referring the petition to a master before any decree settling the rights of the parties upon the issues made by the plead- ings, has resulted in trying intricate questions of law and fact ����