#### Frederick B. Potter, Resp't, *v.*The New York Central & Hudson River R. R. Co., App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

Railroads—Not bound to maintain a fence between its track and ITS OWN LAND ADJOINING.

The defendant was lessee of the N. Y., West Shore & Buffalo R. R. Co. It leased to H. a strip of land ten rods in width and containing twelve acres which ran along the tracks of the "West Shore and was not separated from them "by a fence. H. sublet to plaintiff whose horse, tethered on this strip, broke loose and was injured on the track. *Held,*that plaintiff could not recover; that the statutory liability to maintain fences did not require the lessee to maintain one upon its own land between said land and its track; that when plaintiff became occupant of the land he must restrict its use to those purposes for which it might safely be employed.

Appeal by the defendant from a judgment of the county court of Monroe county, affirming a judgment of a justice’s court in favor of the plaintiff.

*A. H.*Harris, for app’lt; *H. G.*Pierce, for resp’t.

Dwight, P. J.

The defendant, as lessee, operating the lines and occupying the real estate of the West Shore Bailroad Company, leased to one Hayes a strip of land ten rods in width and containing twelve acres, belonging to that company and lying along-side its tracks in the town of Perinton, which was not separated from the track by any fence. Hayes, in 1886, sublet all but half an acre of the strip to the plaintiff, who occupied it for farming purposes. His horse, which was tethered on the strip for grazing, had broken loose and wandered onto the track, when one of defendant’s trains came in sight. The horse was frightened *799by the approaching train and ran before it, on the track, until he came to a bridge where he fell between the ties and broke his leg. The engineer stopped the train as soon as possible after seeing the horse on the track, and before the engine reached him.

The only question in the case is whether, under these circumstances, the railroad company must fence its own land lying along its track, from the track itself, or, in default of doing so, be liable to its own tenants for loss of cattle straying from such land onto its track. We think not There seems to be no American case in point, and the English authorities, under a statute similar to our own, are against the proposition. *Roberts*v. *Great West'n R. Co.,*4 C. B., N. S., 506; *Marfell*v. *So. Wales R. Co.,*8 id., 525; 2 Shearman & Redfield on Neg., 434.

In the case last cited, the defendant owned a strip of land adjoining its right of way, and separated from it only by a fence, which had become broken down. On the strip was a tramway used by the defendant, and which it permitted the plaintiff to use for a consideration. A horse of the plaintiff drawing a car on the tram-way became frightened by a passing train, and breaking loose from the car escaped onto the track of the defendant and was injured. Erie, ó. J., said: “It is clear that the defendants are under no obligation to put any fence on their own land. The statute which obliges them to fence against the land of the adjoining owner has no application to their own. If the tram way was without any fence, it is clear that the defendants might lawfully so use it, and if any one chose to have the use of it, he would be entitled to it as it was, and would have no right to complain if he found' it dangerous, and sustained damage for want of a fence. * * * If the fence was known to the plaintiff to be out of repair and broken down, and he chose to hire the use of the tramway in that state, there would be no contract creating a duty to keep the fence in repair.”

This reasoning commends itself to our judgment as correct. The defendant might, no doubt, leave the strip of land unfenced from the track so long as it was made use of for its own purposes, and, when it rents it to another occupant, the latter must take it as it is and be content to put it to uses for which it may be safely employed in its unfenced condition.

We are unable to see that a case was made of statutory liability on the part of the defendant to the plaintiff, and are of opinion that the judgment of the county court and of the justice must be reversed.

Judgment of the county court and of the justice reversed, with costs.

Macomber, J., concurs.