Page:Federal Reporter, 1st Series, Volume 4.djvu/878

 864. FEDERAL REPOHTBB. �road was permanently located. This memorandum of the grant contains no oovenant or reservation binding the Com- pany to keep and maintain a fence between the lands so granted to the company and the adjoining lands of the peti- tioner. It is conceded that the charter of the company im- poses no such obligation, and whether the general or statuts laws of the state do or not will be hereafter oonsidered. �The company, in constructing its road, did build cattle- guards at the points of entrance and exit into thia and ail other fields through which it passes, and the fences of peti- tioner being joined to the cattle-guards, the enclosure of the railroad land and the two now separated parcels of the peti- tioner was complete. Near one of these cattle-guards was a highway along the fence and across the railroad, and on either side of the field unenclosed lands. These cattle-guards were allowed to fill up, so that straying animais could cross them, and by this means cattle entered the field and committed the damage complained of here. The cattle and hogs doing the damage mostly belonged to the petitioner, as she says herself in her deposition, and there is nothing in the proof to show what proportion of the damage was committed by other animais than her own. The damage was mostly done by hogs. �The proof is conflicting on the question of negligence, but I thiiik establishes that these guards were not properly attended to, and were allowed to fill up, and the animais entered the fields over them. The proof shows that the dam- age was not committed at one time, but the animais habit- ually trespassed on the crops for two years. Newton Ward, a son of petitioner, says he drove the animais out of the field frequently, — five or six times, he thinks, — until he saw it was useless, and let them alone. He says the trespass began in June, and continued until the crops were nearly ruined. He handed a note to one of the witnesses to be given to the superintendent, informing him of the condition of the cattle- guards, which that witness says was delivered. �Another witness for petitioner says he informed the rail- road hands about the trespasses, and others say the train- ����