GENERAL LIABILITY FOR FAILURE TO FENCE. 663 



tract, this imposes the same duties and liabilities as a statute 

 would have done.®^ The fact that the liability is under con- 

 tract does not exempt the plaintiff from his obligation to take 

 ordinary care for the protection of his animals."'' 



139. To What Owners the Company is Liable The question 



whether the fencing laws were intended as a protection to the 

 general public or only to the owners or lawful occupiers of 

 lands adjoining the railway is, to a certain extent, one of 

 statutory interpretation. The rule that the general public^ 

 and not merely the adjoining land-owners, are to be consid- 

 ered has been declared in a leading text-book to be the better 

 one,^'' but it is by no means universally followed. It should 

 be noted that by the general public, in this connection, is 

 meant only the owners of animals not belonging on adjacent 

 lands. Passengers and the owners of goods carried on trains 

 are not here referred to : it has been already stated that it was- 

 largely for their benefit that the statutes regulating fences 

 were enacted.'^-' 



In England, a railway company is bound to maintain fences 

 for the protection of the cattle of the "owners or occupiers" 

 of adjoining land, and this would include one having a license- 

 from the owner to graze his cattle there.'^^ The owner of 

 sheep trespassing on an adjoining close is not within the pro- 

 tection of the statute. ■^^ But where the company is obliged 

 by statute to keep gates closed, an animal on a highway is 



" Gulf, C. & S. F. R. Co. V. Washington, 49 Fed. Rep. 347. 



The agreement need not be under seal : Vandegrift v. Delaware R. Co.,. 

 2 Houst. (Del.) 287. A covenant to build a good and sufficient fence,^ 

 in consideration of the grant of right of way, runs with the land: Lake^ 

 Erie & W. R. Co. v. Griffin (Ind. App.), S3 N. E. Rep. 1042. 



"Joliet & N. I. R. Co. v. Jones, 20 111. 221. 



" See I Thompson Negl. 517. Cf. i Redf. Rys. (6th ed.) 530. See also, 

 in connection with this section, the cases on contributory negligence cited 

 in § 134, supra. 



" See § 138, infra. " Dawson v. Midland R. Co., L. R. 8 Ex. 8. 



"Ricketts v. East & West India Docks Co., 12 C. B. 160. 



