1 IG OBLIGATION OF COMPANY TO FENCE. 



distrained Ity the owner of the soil (I may remark in passing, that I 

 never heard of the owner of soil which was set aside as a highway 

 distraining cattle for trespassing on the hard snrface fenced off, and I 

 do not believe he could do it), or at least that nnder stat. 5 & C 117//. 

 lY. c. 50, s. 74, they might have been impounded by the surveyors 

 of the highway. Assuming this to be so, I do not learn that the 

 railway company are in any way made conservators of the highways. 

 By their neglect the gate was open. The question comes to be, then, 

 Were the horses in the road lawfully as against this company ? I do 

 not think it was necessary to insert that word ' lawfully,' for the act 

 directs that the gates shall be constantly kept closed ; and I think 

 that imposes an obligation to keep them closed, as against everything, 

 whether straying or passing : but at all events the horses were in the 

 road lawfully as against the company, and consequently the rule mnst 

 be discharged." 



The facts in liidrlis v. 'flic Binniiujhmn Jiuiction Railway Company 

 were nearly identical with those in Sharrod v. London and Norih 

 Wesfeni Railway Con^mny. It was there decided that the duty im- 

 posed upon railway companies by the Eailway Clauses Consolidation 

 Act, 1845, 8 & 9 Vict. c. 20, s. G8, as to the making and repairing of 

 fences between their railways and the adjoining lands, is not more 

 extensive than that imposed upon ordinary tenants by the common law. 

 At common law the comj)any icouU only he hound to fence ayainst an 

 adjoininy owner, and the question which the judges here decided in the 

 negative was, whether that obligation was extended by the words of 

 the Act. Therefore, where 50 of the plaintiff's sheep escaped from his 

 close, through his own defect of fences, and getting into the intervening 

 close of a third party, escaped thence on to the defendants' railway, and 

 were killed by a train, the company were not liable. There was a 

 joinder in demurrer. In delivering judgment for the defendants, 

 Jervis C.J. said, " The admitted facts are these, that the company were 

 bound to make and maintain fences in the terms of the statute ; that 

 the plaintiff was the owner of a close adjoining a close belonging to the 

 Great Northern Railway Company, Avhich abutted upon the defendants' 

 railway ; the fences of which close of the plaintiff, he, the plaintiff, was 

 bound to repair ; and that by defect of his fences, the plaintiff's sheep 

 escaped into the adjoining close, and thence passed on to the defendants' 

 railway, in consequence of the want of a fence between it and the close 

 of the Great Northern Railway Company, and were killed. There is no 

 allegation that the action could have been avoided, or that the company 

 had by themselves, or their servants, been guilty of any negligence in 

 that respect. It is admitted that the company were bound to repair as 



