Case 8 — Action by George W. Payton against Louisville & N. R. R. Co. to Compel Said Company to Restore Cattle Guards Removed by it

March 5.

#### Payton v. Louisville & N. R. R. Co.

APPEAL PROM HARDIN CIRCUIT COURT.

Judgment for Dependant and Plaintive Appeals.

Affirmed.

Railroads — Cattle Guards — Prescriptive Rights.

Held: 1. Under Kentucky Statutes, section 1793, providing that railroad companies shall erect and maintain cattle guards at terminal points of fences constructed along their lines, but where there is a private passway across the railroad the landowner shall bear half the expenses of the cattle guards and gates — the owner to erect the gates and the railroad company the cattle guards— the railroad company is not required to erect cattle guards at the .points of entering or leaving plaintiff’s farm, there being no terminal point of the right of way fence, or at the place where the owner has a passway, there being no averment that the pass^ way is obstructed or that plaintiff had ever offered to pay one-half the expense of erecting and maintaining them, and the company having done so he can have no prescriptive right, and it may remove the cattle guards and wing fences at any time. .

W. A. BARRY, J. D. IRWIN and R. L. STITH, for appellant.

The appellant alleges in his petition, that he and those from whom he bought, have been for thirty-five or forty years in possession of a tract of land through which appellee’s railroad runs, and that appellee had erected and maintained two cattle guards consisting of two . wings, each on appellee’s line of railway *54through appellant’s land near his barn, and at a crossing on ■said railroad — and had erected and maintained a cattle guard about 250 yards of the one above named, one wing on each side of a passway, all of which had been used and enjoyed by appellant and his vendors for thirty-five or forty years, and that these two wings of cattle guards are necessary for him in the reasonable use of his land and farm; and after so maintaining same for said time, appellee has forcibly and wrongfully, and against his consent and protest taken out and removed all of said cattle guards from the ground and place where they have been so maintained to his damage, etc.

We contend that the long continued maintenance of such cattle guards by the appellee and, the use and enjoyment thereof by plaintiff, has repined into title by prescription.

To this petition the appellee filed a demurrer which was sustained, from which judgment this appeal is prosecuted.

LIST O'F AUTHORITIES CITED.

Am. & Eng. Ency. Law, vol. 19, pp. 23 and 26; Kentucky Statutes, see. 1793; Tudor’s Leading Cases on Real Property, 167; Van Rensselaer v. Albany & West Stockbridge R. R. Co., 3 N. Y. S. C., 620; 8 Id., 507; 62 N. Y., 65; Leading Cases in the American Law of Real Property, vol. 4, p. 124; Am. & Eng. Ency. of Law, vol 6. p. 151; Am. & Eng. Ency. of Law, vol. 27, p. 908; Beall v. Clore, 6 Bush, 680; 3 Kent’s Com., 563; 6 B. Monroe, 136; L. *&*N. R. R. Co.’s charter, sec. 16; L. *&*N. R. R. Co. v. Pitman, 21 Ky. Law Rep., 1037 and 1038, &c., Ky. Union Ry. Co’s Receiver v. Forkner, 19 Ky. Law Rep., 378.

W. H. MARRIOTT, foe appellee.

POINTS AND AUTHORITIES.

1. The statute does not require appellee to erect or maintain ■cattle guards at farm crossings until the land owner offers to bear one-half of the cattle guards and gates. Kentucky Statutes, section 1793.

2. There is no duty at common law to maintain cattle guards at farm crossings. Elliott on Railroads, sec. 1198; B. & C. R. R. Co. v. Parsons, 27 L. R. A., 264; Brooks v. N. Y. *&*E. R. R. Co., 13 Barb., 504; Sather v. C. M. St. P. R. R. Co., 40 Minn., 91; McKee v. C., N. O. & T. P. R. R. Co.’s Rec’r, 19 Ky. Law Rep., 1270.

3. The owner of the servient estate is under no obligation to fence the way. Jones on Basements, sec. 409; Thompson v. L. & N. R. R. Co., 23 Ky. Law Rep., 476; Goddard on' Easements; Bowman v. Wickliffe, 15 B. M., 84; Mo. P. Ry. Co. v. Fitterling, 79 Mo., 504; Brill v. Brill, 108 N. Y., 511; Bland v. Smith, 23 Ky. Law Rep., 1802.

*55Opinion of the court by

CHIEF JUSTICE BURNAM

Affirming.

The appellant, George W. Payton, brought this suit to compel the appellee, the Louisville & Nashville Railroad Company, to restore cattle guards removed by it, which it had maintained for 35 or 40 years on both sides of his farm .crossing, and also at the property line between his farm and the one adjacent, on the ground that by long-continued use of the passway he had acquired an easement in the wing fences and cattle guards which inclosed iit, and that their removal had rendered his crossing less convenient in driving stock across the railroad from one part of his farm ■to another, as there was nothing to prevent them from running up and down the right of way. A general demurrer was sustained to the petition, and, failing to plead further, his petition was dismissed, and he appeals.

The common law imposed no duty upon railroad companies to fence their roads, maintain cattle guards, or erect any other barrier or stay against the intrusion of stock upon .their roads or right of way. See Elliott on Railroads, section 1198; 7 Am. & Eng. Ency. of Law, 906, 912; Rorer on Railroads, 616; Birmingham, etc., R. R. Co. v. Parsons (Ala.), 13 South., 602, 27 L. R. A., 264, 46 Am. St. Rep., 92. And wherever these duties exist they are always by virtue either of the contract or a statute. There is' no claim that the defendant owed plaintiff any duty to maintain these cattle guards by virtue of any contract. And. section 1793 of the Kentucky Statutes is the only statute bearing upon the question. It provides: “All corporations and persons owning or controlling and operating railroads, as aforesaid, shall erect and maintain cattle guards at all terminal points of fences constructed along their lines, except at points where such lines are required to be fenced on both sides and at public crossings. But where there *56is a private pass-way crossing said railroad, the land owner for whose benefit it is kept open, shall bear one half of the expense of cattle guards and gates. The former to erect gates. The corporation or person operating the railroad to erect the cattle guards.” In McKee v. Chicago, New Orleans & Texas Pacific R. R. Co.’s Receiver (102 Ky., 253), (19 R., 1270), 43 S. W., 241, it was the contention of the land holder that it was the duty of the railroad company operating its line through his farm to construct and maintain cattle guards at the point where the railroad company entered his farm and where 'it left it. And in that case, as in this, the company had actually constructed such guards when it built its railroad in 1876, and had torn them down in 1894, and in consequence thereof his farm had been trespassed upon and his crops destroyed. In response to this contention, the court said: “The railroad company, not being under any legal obligation to maintain catile guards'at the points of entering and leaving the plaintiff’s farm, merely because they were dividing lines with his neighbor, might remove them at any time. These guards were not division or partition fences between his lands and those of the company. They were wholly on the lands 'of the company, and the rights of the parties were not regulated by the provisions of the law as to division fences on farm lands.” There is no averment that the pass-way is obstructed, or that plaintiff had ever offered to pay one-half the expense of erecting and maintaining them, and consequently he does not bring himself within the purview of the statute. And “no obligation rests upon the landowner to fence the way in Avhich another has an easement.” See Jones on Easements, section 409. The cattle guards aind Aving fences were erected and maintained by the railroad company entirely on its OAvn land, and form no part ' *57of the division fences between its right of way and the land of plaintiff, and no length of time would have vested him with a prescriptive right to .require their maintenance by the railroad company alone.

For reasons indicated, the judgment is affirmed.