Page:Federal Reporter, 1st Series, Volume 4.djvu/877

 •WAED ». P, & M. B. CO. 86? �upon exceptions to the master's report, which does nothing more than ascertain the quantum of damages alleged to have heen Bustained. It is a praetice that has been justly con- demned as intolerable, is certainly inconvenient and per- plexing to the court, and should not be resorted to in thfr future. Cobb v. Jameson, 1 Tenn. Ch. 604; Eubank v. Wright, 2 Tenn, Ch, 538 ; Patten v. Cône, 2 Leg. Eep. (Nash- ville,) 173. �Technically, the decree of reference is an adjudication against the receivers that damages have been sustained for which they are liable, and, strictly taken, the only question would be as to the amount ; but such has not been the under- standing of the parties, and I have considered the question» as if the case were before me upon the pleadings and th& proof, �The petition is filed to recover damages to the petitioner's crops by strttying animais, through the alleged negligence of the receivers of this court, while operating the railroad, The claim is for about $1,581, and the master has allowed $9T8.27, the receivers insisting that at most the proof shows only $372,50, Exceptions to this report are filed by both sides, and they raise the questions to be determined, The negli- gence complained of was a failure to keep the cattle-guards on the line of petitioner's field, through which the road passes, in a condition to exclude the animais. The defenees are these : (1) That the railroad company was under no obli- gation to fence or guard the crops of petitioner; (2) that thf cattle-guards were not negligently kept ; (3) that the damage occurred by the negligence of the petitioner herself, �T'he proof on some points is very conflicting, but x think the foUowing statement contains the facts proved, and are those upon which the rights of the parties must be de- termined : �The petitioner, being the owner of a field of about 600 acres of enclosed and cultivated land, granted the railroad the right of way of the necessary width, not exceeding 100 feet on each side from the center of the road, and agreed in wriiing to make a deed to the right of way whenever thft ����