664 LIABILITY UNDER THE STATUTES. 



deemed lawfully there as against it, whether such animal is 

 straying or passing."* 



In Canada, too, the statute protects only the owner or 

 occupant of adjoining lands and there can be no recovery 

 thereunder unless the animals were rightfully on such lands 

 or on the highway from which they escaped to the track.''^ 



The law in England and Canada has thus been summarized : 

 ^'The obligation on railway companies to fence their line is 

 regulated by statute, and the liability for damage resulting 

 from neglect of their duty in that respect is to be deter- 

 mined by the extent of such obligation. The rule to be 

 gathered from the cases is that, unless the statute clearly im- 

 poses a greater obligation on the company, it is responsible 

 only to the adjoining owner between whose land and the 

 railway line the defect in its fence exists by reason of which 

 loss happens. So, if there is a defect in the company's fence 

 :at a certain point, and cattle trespassing on the adjoining land 

 at that point get through the defective fence on the track and 

 are killed, the company is not liable to the owner of the cattle. 

 On the other hand, if the statute clearly imposes an unquali- 

 fied general duty on the company to protect its line at cer- 



" Dickinson v. London & N. W. R. Co., i H. & R. 399; Fawcett v. 

 York & N. M. R. Co., 16 Q. B. 610; Midland R. Co. v. Daykin, 17 

 C. B. 126. 



See Manchester, S. & L. R. Co. v. Wallis, 14 C. B. 213; Luscombe 

 V. Great Western R. Co., 107 L. T. 161. 



"Douglass V. Grand Trunk R. Co., s Ont. App. 585; Daniels v. Same, 

 II id. 471; Conway v. Can. Pac. R. Co., 12 id. 708; Duncan v. Same, 21 

 Ont. 355; Griffith v. Same, 15 Leg. News (Can.) 119; Roux v. Grand 

 Trunk R. Co., 14 Low. Can. 140; Gillis v. Great Western R. Co., 12 

 U. C. Q. B. 427; McLennan v. Grand Trunk R. Co., 8 U. C. C. P. 411; 

 Ferris v. Can. Pac. R. Co., 9 Ma. 501; Westbourne Cattle Co. v. Ma. & 

 N. R. Co., 6 id. 553; McMillan v. Same, 4 id. 220. 



But see St. John & M. R. Co. v. Montgomery, 21 N. B. 441, where 

 the obligation to fence was held to be general and not merely as against 

 adjoining land-owners. 



Where the adjoining land is unoccupied the company need not fence: 

 JVIcFie V. Can. Pac. R. Co., 2 Ma. 6. 



