Mathews v. St. Paul & Sioux City R. Co.

• Decision Date: 01 January 1873
• Parties: LYMAN MATHEWS v. ST. PAUL & SIOUX CITY R. CO.
• Court: Minnesota Supreme Court

Page 392

18 Minn. 392

LYMAN MATHEWS

v. ST. PAUL & SIOUX CITY R. CO.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Blue Earth county, denying a new trial.

Action for an injury caused by one of defendant's trains running against a cow of plaintiff on the defendant's track where it crossed plaintiff's pasture.

Brown & Wiswell, for appellant.

Daniel Buck, for respondent.

COPYRIGHT MATERIAL OMITTED

RIPLEY, C. J.

The defendant on the first of August, 1870, on the plaintiff's land, with its engine and cars ran against and injured a cow belonging to the plaintiff. The defendant constructed its road through said land in 1869, and thereafter daily (Sundays excepted) has run its trains over the same, without paying or securing any compensation therefor to the plaintiff.

At the trial the plaintiff stated on cross-examination that "the damage was finally referred to commissioners," meaning, we understand, that the company had taken the steps prescribed by its charter to acquire the right of way, which proceedings, it is stated by the appellant in its brief, were pending at the time of the occurrence in question.

Its charter, (Laws 1855, c. 24, § 507,) provides that the company may petition the district court for the appointment of commissioners to determine the compensation to be made to the owners of lands proposed to be taken for its purposes, for the taking or injuriously affecting the same; and whenever their report shall have become final, and any appeal therefrom should have been finally determined, the company, upon payment of the amount awarded or assessed, shall become seized of the title thereto, and entitled to the use and occupation thereof for said purposes. Till then the land is not taken, and the company acquires no rights therein; and if, without the consent of the owner, the company build its road through the land, and run its cars over it, it is a trespasser in so doing. Its acts in so doing are a continuing trespass, every repetition of which gives a fresh cause of action. Carli v. Stillwater, etc., R. R. 16 Minn. 260, (Gil. 234;) Gray v. First Div. St. P. & P. R. R. 13 Minn. 215, (Gil. 289;) Harrington v. St. Paul & S. C. R. R. 17 Minn. 215, (Gil. 188;) Adams v. Hastings & D. R. R. ante, 260.

The company would be prima facie responsible, of course, for all the injury done to the land-owner's property in the prosecution of its unlawful act, i. e., its trespass in breaking and entering his close with its engine and cars, and running the same over and through it, including injuries to his cattle therein.

In the case at bar the defendant was prima facie a trespasser, — that is to say, its entry upon the plaintiff's land on the day of the injury to his cow, and running over it with its engine and cars, was prima facie without his consent, and against his will. The fact that the defendant had been operating the road for the length of time aforesaid no more raises, of itself, any presumption that the running there on the day of this occurrence was with the plaintiff's consent than the first day's running raised a presumption of his assent to the second. If indeed it was there with plaintiff's consent — by his leave — it was no trespass — no injury to plaintiff. To say, however, for example, that an injury done vi et armis on every day in the year but the last raises a presumption, or is evidence of a license to repeat it on the last day, is plainly absurd.

The defendant, being prima facie a trespasser, alleges, however, in its defense that it went upon the said premises and constructed its said railroad thereon by and with the consent and license of the plaintiff, granting it permission to enter upon his said premises, and to construct its railroad thereon, and to run its cars and locomotives on said road. If so it was rightfully there. The plaintiff's cow, however, was also rightfully there. She was not "running at large." She was on plaintiff's inclosed land, which, as appears from the evidence, was used for pasture, and so had been before the road was built through it.

On the supposition that defendant was there by license from plaintiff, the case of Williams v. Groucott, 4 Best & S. 149, is in point. In that case it was held that a person entitled to the minerals under the land of another, with license to make a mine — shaft opening into it, is, in the absence of any stipulation to the contrary, under a legal obligation to the owner of the surface soil to fence the shaft so as to prevent it being a source of danger to his cattle, which may be upon it, and is liable to an action for injury occurring to those cattle for want of such fencing. "Looking," says Mr. Justice Blackburn, "to the general rule of law that a man is bound to use his property so as not to injure his neighbor, it seems to me that, where a party alters things from their normal condition so as to render them dangerous to already-acquired rights, the law casts upon him the obligation of fencing the danger in order that it shall not be injurious to those rights."

If the law casts the duty upon this defendant to prevent its use with its trains of the plaintiff's land, by his permission, from injuring his cattle lawfully thereon, it is liable for any injury occurring to them through such use. The cattle were liable to go upon the track, and be injured by a passing train.

The theory of the defendant is that the plaintiff, knowing this, was guilty of negligence in leaving them in the pasture untended. This begs the question, which is, on whom does the law cast the duty of preventing the cattle from getting upon the track? If it is the duty of the defendant it cannot be the duty of the plaintiff, and he cannot be chargeable with negligence for not doing it. Rogers v. Newburyport R. Co. 1 Allen, 16.

It would be, of course, entirely immaterial, in this view of the case, that the defendant could not have avoided striking the cow after she was seen. It was the defendant's duty to have guarded against her getting on the track. The defendant says that it was not obliged, by its charter, to fence its road. The answer is that this was not its road. The defendant was not there by virtue of its charter, but by the permission of the plaintiff, to whom the land belonged, the road no less than the rest.

It is also to be observed that the law, as to the rights and duties (in respect of fencing) of railroad companies who, by purchase or otherwise, have acquired the right of way, is wholly inapplicable to this case.

These considerations dispose of the present case, for no evidence was offered in support of the other grounds of defense set up, viz., that the defendant was legally upon the said premises, running its road thereon in pursuance of its charter, and owner of said road, and legally entitled to operate the same; that the cow was wrongfully upon the track and that the injury was by plaintiff's gross negligence and carelessness. It may be added, too, that we do not think, upon the evidence, that the defendant proved the license set up in its answer as above mentioned.

The defendant had to satisfy the jury that it had the plaintiff's permission to run its trains over his lands. To do this, it called its engineer, in charge of the construction of the road, who testified to a conversation between plaintiff and the president of the road, as to right of way, which took place, as he stated, before work was commenced. "Plaintiff said he did not know how he wanted to settle until the work was completed, as he did not know how it would affect him. The substance of the conversation...