Page:Federal Reporter, 1st Series, Volume 4.djvu/881

 WARD V. P. & M. B. CO. 867 �BMlroad, 36 Mo. 202; Dean v. Railroad, 22 N. H. 316; PFiZ- liams V. Railroad, 2 Mich. 259; 1 Add. Torts, 214, and notes ; Cooley, Torts 654; 1 Eedf. Ky. 483 et seq:-, là.. 499 et seq.; Sherm & Eedf. Neg. 508 et seq,.- 1 Thomp. Neg. 503, 514. �It was judicially determined, in one case, that for the purposes of a railroad the land on which it was built had better remain without fences, there being less danger of kill- ing cattle that would be penned up, so to speak, by the fences, and consequently less danger to trains and travelers. Railroad v. McConochie, 3 Edw. Ch. 487. And, for want of mutuality of benefits, it was, therefore, ruled that the equita- ble doctrine of contribution for partition fences did not apply as between a farmer and a railroad owning adjoining lands. Id. And, in our own state, it has been held that our fence If ws do not apply to towns, but to agricultural localities, and this upon reasoning which will exclude their application to railroads which have no beasts to trespass on others, and no crops to protect. Lightfoot v. Orove, 5 Heisk. 473 ; Staub v. Fantz, 11 Heisk. 766. It may be very well doubted, there- fore, whether, in the absence of express language applying the fence laws to railroads, they are to be held bound by them. Indeed, it may be doubted whether the legislature could by law impose the servitude upon them of keeping up fences for the benefit of adjoining land owners. In consideration of a charter it might be done, or possibly by the exercise of the police power of protecting life "and property while using the roads, the protection to crops being merely incidental. Thorpe v. Railroad, 27 Vt. 140; Trice v. Railroad, 49 Mo. 438. �I think, therefore, in view of these decisions, that, inas- much as our fence laws do not in express language apply to railroads, nor indicate any purpose of adopting, as a police regulation, a requii-ement that railroads shall be feneed, they do not impose on railroads in this state any obligation to keep and maintain fences, either as partition fences or otherwise. This Company was, therefore, in the absence of any charter obligation, or of any eontract express or implied, or of any prescription binding it, not bound to construct or maintain ����