150 OCCUPATION EOAD ACROSS EATLWAY. 



It provides that the company shall make and at all times thereafter 

 maintain the following works, for the accommodation of the owners and 

 occnpiers of land adjoining the railway — that is to say, amongst other 

 things, ' sufficient posts, rails, hedges, ditches, momids, or other fences, 

 for separating the land taken for the use of the railway, from the 

 adjoining lands not taken, and protecting such lands from trespass, or 

 the cattle of the owners or occupiers thereof from straying thereout by 

 reason of tlie railway, together with all necessary gates made to open 

 towards such adjoining lands, and not towards the railway, and all 

 necessary stiles.' Certainly this section makes a very insufficient pro- 

 vision for the protection of the public, where a railway runs alongside 

 a public highway ; but, nevertheless, it is clear that it was intended to 

 apply to such a case ; for if not, there is no section which casts the 

 obligation to fence upon the company in such cases. 



" The highway, therefore, is to be considered adjoining land not taken, 

 and the same construction must be put upon the same words, whether 

 that adjoining land be a public highway or a jirivate close. Wliat, then, 

 is the nature of the obligation ' cast upon the railway company by this 

 section? They are bound to fence so as to keep the cattle of the owners 

 or occupiers of the adjoining lands not taken from straying thereout. 

 In Rk'Tcetts v. Birmingham Junction Raihoaij, this Court has already 

 determined that the obligation of the railway company by this section 

 is the same as it would have been at common law, if they had been 

 bound by prescription to repair the fences ; in other words, that they 

 were only bound to keep up the fences against the cattle of the owners 

 or occupiers of the adjoining land. Were, then, the cattle of the 

 respondents at the time they were killed the cattle of the owners or 

 occupiers of the adjoining land — the highway ? AYe think they were 

 not, and the case of Dovaston v. Payne appears to us to decide that 

 question." 



And scmlle the C8th section of the 8 & 9 Vict c. 20, which provides 

 for the fencing of railways from the adjoining lands, is a substitute for 

 the 10 th section of the 5 & 6 Vkt. c. 55. 



FaivccU V. The YorJc and North Midland Railway Company was relied 

 on by the plaintiff in Ellis v. London and South Western Railway Gom- 

 pany. Here the plaintijf had fields on each side of the defendants' 

 railway, and an occupation-way by w^hich his cattle were driven from 

 the fields on one side of the railway to those on the other, and along 

 which there was an ancient public footpath, crossing the railway on a 

 level. The defendants erected lofty gates on each side of the railway, 

 and gave each person who had a right to use the occupation-way a 

 key ; but there was no means of the puljlic using the footpath, and in 



