Clark v. Ohio River R'y Co. *(HoLT

• Citation: 34 W.Va. 200
• Parties: Clark v. Ohio River R'y Co.*(HoLT, Judge, absent.)
• Decision Date: 28 November 1890
• Court: Supreme Court of West Virginia

34 W.Va. 200

Clark

v. Ohio River R'y Co.*(HoLT, Judge, absent.)

Supreme Court of Appeals of West Virginia.

Submitted September!), 1890.

Decided November 28, 1890.

1. Railroad Companies.

In this state the duty to fence its road on the part of a railway company is purely of statutory creation, and is confined to cases coming under the provisions of the statute.

2. DEMiiKiiKK-Pleading.

Where the declaration contains but one count, and that count sets out a demand of several matters, which in their nature are divisible, anyone of which is well claimed, that is sufficient, and a general demurrer to the whole declaration should be overruled.

Hogg § Belter and Tomlinson &" Wiley for plaintiff in error cited:

32 W. Va. 870; 9 W. Va. 262; 15 W. Va. 362; 27 W. Va. 288; Code c. 103 s. 7; 1 Chitt. PI. (14 Am. Ed.) 214; 3 Wood R'y Law 1558, 1559.

V. B. Archer for defendant in error cited: 10 W. Va 470; 3 Rob. Pr. (New) 530, 531 and eases cited.

Lucas, President:

This was an action of trespass on the case brought by the plaintiff' against the Ohio River Railroad Company in the Circuit Court of Mason county to recover damages for an alleged failure on the part of the defendant to comply with the terms of section 14 of chapter 42 of the Code. (See Code 1887, p. 313, in regard to providing, constructing and maintaining cattle-guards, farm crossings and fences).

The declaration is as follows: "William II. Clarkcomplains of the Ohio River Railroad Company, a corporation existing under and by virtue of the laws of West Virginia, which lias been duly summoned to answer the said plaintift, of a plea of trespass on the ease, for this: that the said

plaintiff was heretofore, towit, on the_day of_1880,

at the county aforesaid, and ever since hath been and still is owner in fee-simple of the following tracts or parcels of land situate on the Ohio river: One tract containing sixty five and a half acres, hounded as follows," (here follow boundaries) "and also one other tract containing-sixty acres and hounded as follows (here follow boundaries.) "And plaintiff avers that on the day and year aforesaid, at the county aforesaid, and ever since that day, the said tracts of land, and each of them, were cleared and fenced. And the plaintiff further avers that the defendant is a railroad company, and being such railroad company, the defendant on the day and year aforesaid, at the county aforesaid, instituted in the Circuit Court of said county proceedings to condemn a right of way for its track over and across said two tracts of land, and did condemn the same for the uses and purposes of a railroad right of way and railroad track, and said defendant did afterwards pay the damages assessed under and by virtue of said proceeding, and the right of way aforesaid became vested in the said defendant, and a railroad track was laid by said defendant over said tracts of land on the right of way aforesaid, and the said defendant has been using its said right of way and railroad built thereon, over and across said tracts of land for the transportation of freight and passengers, ever since the 8th day of January, 1887, and still is using said railroad laid over and across said tracts of land for the transportation of freight and passengers. Plaintiff avers said defendant has, ever since the day and year last aforesaid, refused and neglected, and still doth refuse and neglect, to construct suitable farm-crossings and cattle-guards on the tract first hereinbefore mentioned and described in this, towit: "

"(1) The said defendant has failed and neglected to construct any farm-crossing at the lower end of said first-mentioned tract where said railroad leaves said tract, although it is necessary and proper that a suitable farm-crossing should be constructed at the lower end of said first-described tract, so as to enable this plaintiff to properly use and farm such tract of land, and, without the use of such crossing, plaintiff hath, been and is damaged in the farming and tilling of said tract to an amount equal to the sum of five hundred dollars."

"(2) And said defendant hath also failed and neglected to construct a farm-crossing at a point about four hundred feet from the upper line of said first tract, although it is necessary and proper that a suitable farm-crossing should be constructed at such point, so as to enable this plaintiff to freely and properly use and enjoy and cultivate said first tract, and, without the use of such crossing last herein designated, plaintiff hath been and is damaged in the farming and tilling of said tract, and, without said crossing, the plaintiff is further damaged to an amount equal to five hundred dollars."

" (3) Plaintiff avers that defendant has failed and neglected to construct a farm-crossing on said first-mentioned tract just above West creek, and where said railroad crosses said creek, although it is necessary and proper that a suitable farm-crossing should be constructed just above West creek, as aforesaid, on said tract, so as to enable plaintiff to freely and properly use, farm, and enjoy said first tract, and without the use of this last-mentioned farm-crossing plaintiff hath been and is damaged in the farming and tilling of said tract to a further amount of one hundred and fifty dollars. "

" (4) Plaintiff further avers that the defendant hath failed and neglected to construct a cattle-guard at the upper line of said tract first hereinbefore described where said railroad leaves said tract, although it is necessary, proper and suitable, that a cattle-guard should be there constructed for the purpose of pasturing and grazing said land by livestock owned by the plaintiff, and for the proper using and farming of said tract, and by reason of the failure of said defendant to construct said cattle-guard, plaintiff hath lost the use of said tract, or a large part thereof, ever since the day and year last aforesaid, at the county aforesaid, for pasturage and grazing purposes, whereby plaintiff hath been damaged the further amount of two hundred and fifty dollars."

" (5) Plaintiff further avers that defendant did construct one farm-crossing on the said tract first hereinbefore described; but the plaintiff avers that the crossing so constructed is insufficient and unsuitable as a farm-crossing, and that by reason of said unsuitable crossing, plaintiff hath been hindered, delayed, and injured in his work and labor of farming and cultivating said tract, and by reason thereof has been further damaged to an amount equal to the sum of one hundred dollars."

" (6) And the plaintiff avers that the defendant failed and neglected to construct a cattle-guard on the lower end of the second tract, hereinbefore described, on the upper side of a lane used in common by the plaintiff and one George W. Buffington, whose land adjoins said last-described tract of this plaintiff, and also said defendant...