the highway; and the plaintiffs were therefore trespassers, and not lawfully occupying the adjoining land so as to enable them to maintain this action. 1854. THE MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE RAILWAY CO. App.; Gray for the respondents.-The 68th section of the Railways Clauses Consolidation Act makes it imperative WALLIS, Resp. on the defendants to maintain the fence between their railway and the high road, for it is clearly land adjoining the railway. Now, every one has a right to use the high road by his cattle; and the defendants are liable, if, through a defect in the fence, the cattle get on to the railway and suffer damage. In Ricketts v. The East and West India Docks and Birmingham Junction Railway Company the sheep were trespassers on the adjoining close. [Jervis, C. J.-If cattle are lawfully passing on the highway, the owner of the adjoining close, being bound to keep up the fence, cannot distrain them if they get on his land through defect in the fence; but if they were unlawfully on the road, he may: Dovaston v. Payne (a). But you would say, that is not conclusive.] Yes, that case does not shew, that, if the cattle had suffered damage through the negligence of the owner of the close, he would have been exempted from liability, merely because they were straying on the road. If cattle are straying on the highway, the owner is liable to have them distrained, no doubt; but it does not follow that he may not also have a right of action for an injury caused by the negligence of another: Davies v. Mann (b), Bird v. Holbrook (c). In Fawcett v. The York and North Midland Railway Company, the horses were straying on the road; but this Court held, that, as against the Company, they were lawfully there. [Jervis, C. J.-The distinction pointed out by the counsel for the appellants between that case and the present is the true one; the Company were there (a) 2 H. Blac. 527. (b) 10 M. & W. 546. (c) 4 Bing. 628. 1854. THE MAN CHESTER, SHEF FIELD, AND RAILWAY CO. App.; bound to keep the gate shut as against all the world; here, the only duty of the defendants is to maintain the fence as against the owners or occupiers of the adjoining land.] LINCOLNSHIRE In Barnes v. Ward (a), Maule, J., in delivering the judg ment of the Court, makes this observation: "With regard WALLIS, Resp. to the objection that the deceased was a trespasser on the defendant's land at the time the injury was sustained, it by no means follows from this circumstance that the action cannot be maintained. A trespasser is liable to an action for the injury which he does, but he does not forfeit his right of action for an injury sustained." [Williams, J. -The decision in that case was grounded on the fact that the defendant's act amounted to a nuisance.] J. Addison replied. Cur. adv. vult. JERVIS, C. J., (Jan. 23) delivered the judgment of the Court (b). After the finding of the jury, we must assume that the cattle of the respondents, without any fault on the part of the respondents, strayed into the public road adjoining the railway, and, through a defect of the appellants' fences, got upon the railway, where they were killed. The question is, whether, upon these facts, the appellants are liable to this action; and we are of opinion that they are not. This is not the case of a railway crossing the highway on a level, with a gate on either side of the railway, but of a highway running alongside of the railway. The only enactment that is applicable to such a case is the 68th section of the Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20, which provides, "That the Company shall make, and at all times thereafter maintain, the following works for the accommodation of the owners and occupiers (a) 9 C. B. 420. (b) Jervis, C. J., Maule, J., Williams, J., and Talfourd, J. 1854. THE MAN CHESTER, Shef- FIELD, AND RAILWAY Co. of land adjoining the railway, that is to say," amongst other things, "sufficient posts, rails, hedges, ditches, mounds, 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 WALLIS, Resp. reason of the railway, together with all necessary gates made to open towards such adjoining lands, and not towards the railway." Certainly, this section makes a very insufficient provision for the protection of the public where a railway runs alongside a public highway; but, nevertheless, it is clear that this clause was intended to apply to such a case as this, for, if not, there is no section which casts the obligation to fence upon a Railway Company in such cases. The highway, therefore, is to be considered to be "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 private close. What, 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 "adjoining lands not taken" from straying thereout. In Ricketts v. The East and West India Docks and Birmingham Junction Railway Company (a), this Court has already determined, that the obligation of a 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 fence; in other words, they are only bound to keep up the fences against the cattle of the owners and occupiers of the adjoining lands. 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? We think they were not; and the case of Dovaston v. Payne (b) appears to us to decide that question. Whilst cattle are 1854. THE MAN FIELD, AND RAILWAY CO. App.; WALLIS, Resp. passing along a highway, the owners of them are using it according to the dedication of the owner of the soil, and, CHESTER, SHEP being there with his consent, the owners of such cattle LINCOLNSHIRE are strictly occupying the highway. If, therefore, while passing along the road, they stray into an adjoining field, the owner of that field cannot distrain them damage feasant, if he was bound to keep up the fence against the road; but if, instead of passing along the road, the cattle had strayed there, they might, if they escaped into an adjoining close, be distrained damage feasant, notwithstanding the owner of that close was bound to repair the fence between his close and the road, because the cattle were wrongfully on the road, and the owners of those cattle were not, therefore, occupying it so as to cast any obligation to repair the fence upon the distrainor. Applying this decision, and the principles thus established, to the present question, we are of opinion that the owners of the cattle, the respondents, were not occupying the road with their cattle, which strayed on to the road; and that therefore there was no obligation upon the appellants to maintain a fence against them. If, then, there was no obligation to maintain the fences against the respondents' cattle, the appellants were guilty of no wrong in omitting to do so. There is no complaint that the railway was conducted improperly; the only complaint is, that the fence was not sufficient. The legislature, with a full knowledge of the dangers of railways, has cast on the Companies a limited obligation only, and we cannot enlarge it, merely because the public safety may be endangered. This distinguishes this case from the cases cited. In Fawcett v. The York and North Midland Railway Company, the Company were required, by the express words of the statute, to keep the gate closed across the road under all circumstances, and they were guilty of a wrong in omitting to do so. Bird v. Holbrook was decided on the unlawful to set up spring-guns, and ground that it was 1854. THE MAN CHESTER, SHEF- FIELD, AND RAILWAY CO. that therefore the defendants were liable, although the plaintiff was a trespasser; and Barnes v. Ward was determined on the ground that the area close to the public highway, into which the plaintiff fell, was a public nuisance. If the appellants had been guilty of a wrongful act, there are many cases to shew that the respondents WALLIS, Resp. would not lose their remedy, merely because their cattle were trespassers; but, in this case, there was no wrongful act, and the obligation to repair does not exist, the cattle being trespassers, and the owners of them, therefore, not occupying any part of the adjoining lands, in the language of the Act of Parliament. We therefore think the appeal must be allowed, with costs. Appeal allowed, with costs. CROUCH V. THE LONDON AND NORTH WESTERN RAILWAY THIS COMPANY. was a case stated for the opinion of this Court by an arbitrator, pursuant to a power contained in an order Jan. 17th. The defendants, a Railway Company, advertised themselves to carry par cels, &c. from London to Glasgow (though their own line ended at Preston), and habitually received, booked, and carried parcels of all descriptions from London to Glasgow (receiving prepayment for the whole distance), having made arrangements with the other Companies, by which the defendants' vans, being locked in London, were carried through from Preston to Glasgow, under the management and by the locomotive power of the other Companies. The defendants had issued written orders to their servants, that "packed" parcels be invoiced to termini of the defendants' line only. The plaintiff had received notice of this order, but it had never been enforced against any one but the plaintiff, and the defendants had knowingly carried packed parcels from London to Glasgow since the order was issued; but they refused to carry a packed parcel for the plaintiff further then Preston:-Held, first, that, by the 8 & 9 Vict. c. 20, ss. 86, 87, and 89, the defendants were left in the position of common carriers; and that, having held themselves out, and acted, as common carriers from London to Glasgow, they were bound by the common law to receive and carry all goods tendered them to be carried from London to Glasgow, although the latter place was out of England. Secondly, that, being common carriers, and having carried packed parcels for some persons, they were bound to carry them for all. Semble, that a common carrier cannot, in any case, refuse to carry "packed" parcels. Held, also, that a common carrier has no right, in all cases, and under all circumstances, to demand what are the contents of a parcel tendered to him to be carried, and cannot justify his refusal to carry, simply on the ground that information as to its contents was refused. |