St. Louis v. Todd

• Citation: 36 Ill. 409,1865 WL 2759
• Parties: ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD CO.v.SAMUEL TODD.
• Decision Date: 31 January 1865
• Court: Supreme Court of Illinois

36 Ill. 409

1865 WL 2759 (Ill.)

ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD CO.

v.SAMUEL TODD.

Supreme Court of Illinois.

January Term, 1865.

ERROR to Circuit Court of Coles County.

Case by defendant in error against plaintiff in error, for negligently running over with its locomotive and killing two of plaintiff's horses, in consequence of defendant's neglect to fence its road.

It appeared from the evidence that defendant's road passed through a certain field cultivated by plaintiff; that the field was originally owned by one Messer, by whom it was sold to Mary C. Serine; that by her it was demised to Samuel Procter, and that it was under cultivation by plaintiff on shares under said Procter at the time plaintiff turned his horses into it; that the exterior lines of said field were fenced, but that there was no fence along the sides of the road; that plaintiff turned his horses into the field with blind bridles on, which they had on when killed. It also appeared that a verbal agreement was entered into between the defendant and Messer, while he owned the land, that the company should not be held responsible by him for any injury to stock injured or killed on its road through said field, if it would build cattle guards on each side of said field, which were accordingly built by the company.

Verdict and judgment for plaintiff, with $250 damages.

The questions for determination are sufficiently stated in the opinion.

Ballard Smith, and Wiley & Bocker, for plaintiffs in error.

Ficklin & Scholfield, for defendant in error.

WALKER, C. J.

It is insisted that the verbal agreement between Messer and the company passed with the land, and became binding upon his assignees and those holding under them. For aught that appears, Mrs. Serine may have had no notice of the agreement, and even if she had, we are at a loss to perceive how a mere verbal agreement of her grantor could affect her rights. The law imposes the duty upon the company of fencing their road, so as to prevent stock from getting upon it. And a mere agreement, or verbal license of an owner, releasing them from that duty, however valid and binding on them, cannot affect the rights of other persons not parties or privies. Strangers to the agreement could not be bound by it, and there is no evidence that Mrs. Serine, or defendant in error, ever became parties or privies. There was no covenant or agreement on her part to keep and perform Messer's agreement. It is not pretended that it is a covenant that runs with the land. It was, at most, a mere personal agreement, binding alone on Messer and the company, and was not assignable like commercial paper, nor did it attach, or in any manner become annexed to, the land.

Had there been no agreement between Messer and the company, and the road had not been fenced, it is manifest that the company would have been liable for injury to stock getting upon the road. And we see that the company have not complied with the requirements of the law, nor have they been released from liability by any person but Messer. If before he sold, other people's stock had entered this field through Messer's fence, and been injured, we are at a loss to see how the company could have defended against an action by the owner. Nor do we...