LIABILITY OF RAILWAYS AS TO LEVEL CROSSINGS. 117 



against the owners of the adjoining lands, but it is insisted that the 

 plaintiff under these circumstances is not entitled to recover. 



"The rule upon the subject is well laid down in the notes to Pomfret 

 V. Ricroft : ' The general rule of law is, that I am bound to take care 

 that my beasts do not trespass on the land of my neighbour ; and he is 

 only bound to take care that his cattle do not wander from his land, 

 and trespass on mine (Tenant v. Gold/cin ; Chinrhill v. Evans ; Boyle v. 

 Tamlyn) ; and therefore this kind of action will only lie against a person 

 who can be shown to be bound by prescription or special obligation to 

 repai« the fences in question for the benefit of the owner or occupier of 

 the adjoining land. And no man can be bound to repair for the benefit 

 of those who have no right. Therefore the plaintiff cannot recover for the 

 damage occasioned to his cattle by their escape from the adjoining close, 

 through the defect of the defendants' fences, unless the plaintiff had an 

 interest in that close, or a licence from the owner to put them there.' 

 Applying that rule to the facts of the present case, had the i3laiutiff 

 any right to have his sheep on the land adjoining the defendants' 

 railway ? It is admitted that they were there not by right, nor under 

 any licence from the owners of the close, but through a breach of duty 

 on the part of the plaintiff himself. It is clear that if the defendants 

 are only liable to repair so as to protect the owners of the adjoining 

 lands, the plaintiff cannot maintain this action. The next question is, in 

 ^vhat respect does the statute vary the ordinary common law liability ? 

 It seems to me, that, so far from varying the responsibility of the defen- 

 dants, the statute has most properly taken the common-law rule as the 

 measure of their liability. The G8th section enacts that the company 

 shall make and maintain ' sufficient posts, rails, hedges, ditches, mounds, 

 or other fences for separating the land taken for the use of the railway 

 from tlie adjoining lands not taken, and protecting such land from 

 trespass, or the cattle of the owners or occupiers thereof from straying 

 thereout by reason of the railway.' It seems to me that this liability 

 is not more extensive than the ordinary common-law one. It is said 

 that in adopting this view we shall be conflicting with the decision of 

 the Court of Queen's Bench in Faivcdt v. Yovli and Norih Midland 

 Railvay Comi)any. That, however, is not so. The Court there held 

 that independently of the common law, the statute 5 & 6 Vid. c. 55, s. 9, 

 imposed upon the company an unqualified and unlimited obhgation to 

 Iccp the gates at the end of level-crossings closed against all persons or 

 cattle upon the highway, whether lawfully there or not, and that they 

 were liable to an action for an injury arising from a breach of that duty. 

 In the third place it was insisted that even if there was no common-law 

 liability, and the statute imposed on the defendants no additional duty, 



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