
    HINES, Director General, v. BAKER.
    
    (No. 375-3501.)
    (Commission of Appeals of Texas, Section B.
    Feb. 28, 1923.)
    Railroads &wkey;>!02(l) — Statutory duty to leave openings in fence for farm crossing limited to “inclosure.”
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6486, requires an opening in a right of way fence which in fact divides an inclosure, and does not give landowners generally whose property is bisected and traversed by railroad rights of way an opening or means of going from one portion of their farms situated on. opposite sides of the railroad to another, where-there is no inclosure; the word "’‘inclosure” being- used advisedly (quoting Words and Phrases, Eirst Series, Inclosure).
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Action by W. S. Baker against Walker D. Hines, Director General. There was a judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certifies-question. Question answered.
    Henderson & Ranson, of Bryan (Jno. M. King, of Houston, of counsel), for appellant.
    Lewis & Dean, of Navasota, for appellee.
    
      
       Reheáring denied March 28, 1923.
    
   POWELL, J.

This cause is before the-Supreme Court upon the following certificate from the honorable Court of Civil Appeals for the First District:

“In the above styled and numbered cause now pending on rehearing in this court upon an appeal from the county court of Grimes county, the question hereinafter stated, which is material to a determination of the appeal, arose1 out of the facts disclosed by the record as follows:
“The I. & G. N. Railroad runs through the land or farm of J. II. Stewart, its right of way being fenced across the Stewart place, and there being one opening and gate in the fence on each side of the railroad, but the Stewart property so lying on both sides of the railroad track was not inclosed. The cause turns upon the construction of article 64SI6, Vernon's Sayles’ Civil Statutes of 1914, which in full is as follows: ‘Art. 6486. All railway corporations in this state which have or which may hereafter fence their right of way, may be required to mate openings or crossings through their fence and over their roadbed along their right of -way every one and one-half miles thereof; provided, that, if such fence shall divide any inelosure, that at least one opening shall be made in said fence within such inelosure.’
“On original hearing a majority of this court determined that by the passage of this law the Legislature meant what was held to be plainly stated by the language therein used, that is, to require at least one opening in a right of way fence which in fact divides any inclosure, rather than that its intendment was to give landowners generally whoso property is bisected and traversed by railroad rights of way an opening or means of going from one portion -of their farms, situated on opposite sides of the railroad, to another, without reference to whether such lands are comprised within an inelosure or not, and consequently that the railroad company in this instance was not protected by this enactment. One member of the court dissented, however, talcing substantially the alternative view above expressed. We now deem it advisable to certify for your decision the question:
“Did the majority of this court err in the construction so given the statute quoted?”

In passing upon this question, the majority opinion of the Court of Civil Appeals reads as follows:

“The argument of appellant, in effect, is that the Legislature did not mean what it here so plainly says, that is, to require at least one opening in a right of way fence which in fact divides any inelosure, but that its purpose and object was to give landowners generally whose property is bisected and traversed by railroad rights of way an opening or means of going-from one portion of their land situated on opposite sides of the railroad to another, without reference to whether such lands were comprised within an inelosure or not. This court is unable to agree with him; it seems to us the meaning of the statute is made quite clear by the simple and unequivocal language used, and that to read into it the view contended for by appellant would be to discard its plain terms and glean its purport from extraneous sources.”

Judge Lane, dissenting, adopted the contention raised by the railway company as 'set out in the majority opinion above quoted.

The article of the statute first above quoted was a part of the act of 1887, and can be found in full in Gammel’s Laws, vol. 9, p. 837. The various provisions of that act are also set out in full by Judges Brown and Williams in their opinions in eases to which we shall hereafter refer. In- addition to article 6486, set out in the certificate above, the act prescribes the character of crossings, their location and construction,. method of obtaining same, etc. Although this act has been the law in this state for more than 35 years, it seems that this is the first time any one has ever contended in an appellate court in Texas that the article in question should be construed as the minority ppinion in the instant case does construe it. Decision after decision has been rendered, apparently taking it for granted that the Legislature used the word “inelosure” advisedly, and meant what it said. We shall refer to some of these decisions hereafter. In them there is no holding construing this statute on this point. But, as we see it, the courts clearly evidence their opinion that the statute means what it says.

What does “inelosure” as used in the statute mean? In the absence of any provision in the act evidencing a contrary intention, it will be presumed that the Legislature used the word in its usual and ordinary signification. But, even if you apply to the word its broadest possible meaning, it cannot be stretched so as to include an open tract of land. Such a tract could not possibly be one “within an inelosure.” Counsel for the railway company cite no authority, text, or decision so extending the meaning of the word “inelosure.” Judge Lane cites no authority in that connection. We have been unable to find any such authority in Texas or elsewhere. Words and Phrases, First Series, vol 4, p. 3497, defines an inelosure as applied to land as follows:

“ ‘Inclosed,’ when applied to lands, as defined by Webster, is ‘separated from common grounds by a fence.’ Worcester defines it as ‘parted off or shut in by a fence; set off, as private property.’ Inclosed lands, therefore, are lands surrounded by a fence. Kimball v. Carter, 27 S. E. 823, 825, 95 Va. 77, 38 L. R. A. 570.”

Therefore, in order to give the statute the construction contended for by the railway company, the proviso section of this statute must be rewritten by the courts. This section must be, in effect, repealed by the courts and amended or rewritten by them before the railway company’s contention can be sustained. Said contention demands, as we see it, a rejection of the language used by the Legislature. We think Judge Graves correctly holds herein that this cannot be done by the courts. The language of the statute is “simple and unequivocal.” It is but fair to assume that the Legislature intended to do what it actually did do. If it had desired to write the statute as Judge Lane thinks they intended to write it, there was nothing to prevent them from doing so. It was a simple matter, and they could have very easily declared that every owner of land, divided by a railway company’s fence, should have at least one opening. But these gentlemen writing this law did not so provide. For the courts to take this matter out of their hands would clearly constitute an invasion of their constitutional prerogatives. The courts are not created for the purpose of taking over the duties of the Legislature in making laws for the people.

We seriously doubt if we should consider extraneous matters in construing this statute, for the article itself, in and within itself, seems perfectly clear to us. But we have carefully investigated the caption of Acts 1887, p. 39, and its 'other provisions, as well as the legislative journals relative thereto, and we find nothing warranting the construction of the statute upheld by the minority of the Galveston court. The statute as written is entirely consistent with the caption and other provisions of the act of 1887. Not only so, but it is clearly in line with all the statutes of this state which seek to protect live stock from death or injury on railway tracks. Article 6603 of our statutes makes railway companies absolutely liable for all stock killed or injured by the ears and locomotives of said companies, unless the latter fenced their roads, in which event'they shall only be liable for injury resulting from a want of ordinary care. Our lawmakers knew .that railway tracks were veritable death traps for live stock, and that their protection demanded that railway rights of way be fenced. They knew that every opening into such a right of way increased that much the hazard to live stock. So the Legislature established this general requirement of fences in the most effective manner possible. These fences are required everywhere except at a few places where the courts have declared that the public convenience demands the fences be left off. In such cases, the Legislature having been silent, the courts have, of necessity, read a few exceptions into the general requirement of these fences. We refer to public road crossings, switching and station limits, certain portions of incorporated cities under peculiar conditions as illustrations of such exceptions. But the courts have been slow to add to this list of exceptions to the general rule requiring fences. Furthermore, the Legislature decided that neighborhoods were entitled to crossings every mile and a half, and that private individuals, under certain circumstances, should have openings in the r.ailway fences. Therefore this act of 1887 was passed by the Legislature. A part of this act has already been set out as article 6486. So it seems clear to us that this very article now under consideration is entirely consistent with the general purpose oí our statutes in this connection as a whole.

We shall now refer to several decisions showing the views of our appellate courts as to the purpose the Legislature had in mind in passing this very article. In doing so we shall quote a few expressions of the courts which are all persuasive, in our view, as sustaining the construction given this statute by a majority of the Court of Civil Appeals in the case -at bar, and as showing that there is no intimation in said decisions to the effect that the courts felt that the language of this statute should be rejected.

In the case of Railway Co. v. Rowland, 70 Tex. 298, 7 S. W. 718, Judge Gaines says:

“We therefore think that as in all subsequent acquisitions of rights of way in the absence of some express or implied agreement to the contrary, the railroad companies will be charged with the duty imposed by the statute, and the measure of the compensation will be regulated accordingly. Therefore, as to such future cases, in our opinion, the statute should be constitutional, in so far as it applies to crossings within inclosure. Smith v. Railroad Company, 63 New Xork, 58.”

In the case of Railway Co. v. Chenault, 92 Tex. 691, 49 S. W. 1035, Judge Brown speaks as follows:

“A careful study of the act of 1887, embodied in the articles above quoted, will disclose the fact that the leading purpose of the Legislature was to provide crossings outside of inclosures and independent of streets and public roads, at intervals not greater than one and one-half miles, so that citizens and their stock might pass freely from one side of the railroad to the other. The requirement with regard to crossings within inclosures was introduced by a proviso, and the structure of the act indicates that it was more a measure of precaution against affecting an existing right than to provide a remedy or to confer a new right. We do not intend to intimate that the right does not exist under the statute.”

In the same ease Judge Brown also says:

“In article 4431 [now article 64900 the railroad company is exempted from compliance with the demand if it has already openings at the distance of one and one-half miles, except within inclosures. By this it was intended to provide that if there should be a crossing outside of and near to the inelosure, this should not exempt the railroad company from constructing such crossing within the inclosed premises which its road divided.”

In the same case of Railway Co. v. Chenault, the Court of Civil Appeals at Dallas later referred (24 Tex. Civ. App. 481, 60 S. W. 58) to Judge Brown’s language first above quoted by us, and then continues:

“The existing right to which Judge Brown refers was the common-law right to a way of necessity, which, as we have seen above, must always b.e adequate, and which the owner of the inclosure was bound to put in and maintain at his own expense, after being compensated for so doing by the company. In what respect did 'the Legislature intend to change the existing right?”, - '

In the case of Railway Co. v. Hanacek, 93 Tex. 446, 55 S. W. 1117, Judge Williams sets out all the provisions of the act of 1887, and construes certain sections thereof. He refers particularly to article 4428 (now article 6487), reading as follows:

“Such crossings shall not be less than thirty feet in width, and shall be made and kept in such condition as to admit of the free and easy passage of horses, cattle, sheep, hogs, and all other domesticated animals, wagons and other vehicles.”

We quote from his opinion this language:

“This view of the statute results in the conclusion that its chief purpose was to secure openings through fences and crossings over roads of the character defined in article 4428 to residents or owners of land in neighborhoods through which the road passes, and that the proviso was introduced merely to recognize and secure to owners of inclosures their right Of access to and passage through their lands thus divided. The character of these openings of the latter kind is not defined further than by the language of the proviso, but was doubtless intended to be such as should be appropriate to the situation and needs of the owner. Railway v. Ohenault, 92 Texas, 501.
“Appellee’s contention, stated more fully, is that the provisions of the statute under discussion require open crossings, where openings are made in fences within inclosures, and that to such crossings cattle guards or stops would be essential to prevent animals passing through them from straying upon other parts of the track, and that without such incidents the tracks would not be fenced as required. It may be true that where a crossing open to use by people and stock indiscriminately is made, cattle guards or other protection of that character would be essential to constitute a fenced track in the sense of the statute. While the statute does not,' in terms, so provide, it does require that the track be fenced, and since there are some places, such as depot grounds, highways, crossings, etc,, which cannot be fenced, it may follow that, in order to meet the requirement as to fencing, provision against the entrance of animals through such openings upon other parts of the track would be necessary .to secure the immunity given when the tract is fenced. But the necessity for such steps would not be the same where an opening is to be left in a fence running through an inelosure, for the use only of those interested in the inelosure. The difference between the purposes and uses of the two kinds of openings furnishes a reason for the difference in-the statutory requirements respecting them which has been pointed out, and strengthens the construction which has been put upon them. The crossings required open a passageway for persons and animals generally, while openings within inclosures ordinarily affect only the owners and the railroad company.”

Judge Williams’ opinion just quoted was followed by section A of the Commission of Appeals in the very recent case of Railway Co. v. Gilbert, 246 S. W. 347.

The Court of Civil Appeals at Fort Worth, in the case of Railway Co. v. Wilson, 58 Tex. Civ. App. 136, 24 S. W. 133, employs this language:

“But in the present case, as will be seen from our statement in the former opinion, the gate constructed by appellant is not ‘within’ an inelosure at all, but is at a point at the end of an open lane which is literally and to all intents and purposes in the. outside fence of such inelosure. In that case the right of way at such a point is exposed to all the hazards of trespassing stock, and the public is as much entitled to demand the protection of a fence as at any other point not actually within an inclosure. The statute quoted does not seem to contemplate that an owner, whose inelosure was divided by a line of railway, would be entitled to demand an opening in the right of way fence except at *some point within his inclosure. If the owner, then, is not entitled to demand such opening, clearly the railway company is not required to make it, and its doing so would not relieve it of the duty imposed by law to -fence its track.”

We submit that the language of these cases shows that our courts have never thought that the proviso section of the article now under consideration referred to open tracts of land.

Judge Lane cites no authorities to sustain his views as to the construction of this statute. He gives us several general rules governing the construction of statutes. But he makes no practical application of such rules to this very statute. He says he thinks the Legislature intended to provide an opening across the land of every owner when said land was divided by railway fences, whether that land be inclosed or open, and that his conclusion as to such an intention on the part of the lawmakers is due to his belief that any other kind of statute might work a hardship on an individual under certain circumstances. In this connection Judge Lane says:

“Lei us suppose a farmer owns a farm lying adjacent to a river 400 varas square and a railroad right of way crosses such river at right angles and runs through the center of such farm. Can it be reasonably held that under the law the railway company may fence its right of way through such farm and extend the same for a mile or more beyond it without leaving an opening so as to give such farmer access from one part of his farm to the other part? I think not.”

It seems to us that Judge Lane has entered the realm of the policy of the law. The courts cannot do this. With the wisdom or unwisdom of any given statute the courts have nothing to do. The courts, doubtless, frequently feel that laws are not written in the best terms for the public or private good. But the remedy is not -with the courts. If the Legislature shall hereafter conclude that this aged statute has outgrown its usefulness because of modern conditions or otherwise, its members can rewrite the.same at any time. That is a much safer method, under our system of independent branches of government.

But we will say in passing that it seems to us there is much reason for the provisions as actually written by the lawmakers. Judge Lane seems to base his conclusions solely upon the convenience of the individual landowner. Upon that basis it would perhaps be better for the individual property owner to have this statute construed as Judge Lane suggests. In fact, so far as the landowner himself is concerned, in the use of his land, he would be better off if the railroad did not cross his land at all. But the railroads had to come because of the general welfare of the people. '

It has never been the policy of the law to award individuals every convenience at the expense of the rights of their neighbors. The Legislature in enacting this very article declares that, in its judgment, a crossing every mile and a half is all that is necessary for the public. Still the lawmakers were glad to give the owners of inclosed land a private opening across the railroad dividing said lands, because such openings would not ordinarily affect the stock of others. In other words, we think the Legislature was unwilling to endanger live stock of others which was at large, just in order to make more convenient the use of one’s land by its owner. If the person for whose benefit the opening was required does not keep the open-, ing or gates closed, he has no one to blame but himself. We doubt if it should be said that the Legislature erred in requiring land to be inclosed if the owner thereof wanted this private opening across the track. It might well be said that, if a man desires certain privileges, he should be willing to protect his neighbors from the dangers incident to his exercise of' such privileges. The hypothetical case Judge Lane suggests presents a person whom the Legislature might have thought should be willing to meet the requirements of the statute if he wanted the desired opening. Furthermore, if such a person thought it would be .cheaper to pay for the live stock of others which might be killed because the gates of his opening might be left open, he should at least be willing to try to have the railroad company consent to giving him an opening upon condition that he afford it satisfactory security to indemnify it against losses due to the gates being left open.

Judge .Williams clearly had in mind that these private openings were restricted to inclosed lands, and did not include open lands. If he had thought the statute referred to open lands, we do not think he could have used this language in Railway Co. v. I-Iana-cek, supra:

“The crossings required open a passageway for persons and animals generally, while openings within inclosures ordinarily affect only the owners and the railroad company.”

Such openings affect those parties only for the reason that the land which is fenced is not open to animals of other people, if said openings in the railroad fences were into an open field or tract of land, ordinarily said railroad fence openings would necessarily affect all live stock and the rights of many other people.

We entertain no doubt of the correctness of the construction of this statute by the majority of the Court of Civil Appeals at Galveston, and which construction has been set out in full in the certificate from that court heretofore quoted. Therefore we recommend that the certified question propounded herein be answered in the negative.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the Court of Civil Appeals. 
      <®=»For other eases see same topic and KEY-NUMBBR in all Key-Numhered Digests and indexes
     