
    John M. Haxton v. The Pittsburgh, Cincinnati and St. Louis Railway Company.
    Under section 2 of the act of 1859 (56 Ohio L. 62), where the owner oi lands adjacent to a railroad constructs and maintains a good and sufficient fence inclosing his own lands, in such manner that it may be made to answer the purpose of inclosing the railroad also, the fact that compensation was not paid for the right of way through such lands, will not prevent the company from joining its fences to the fence constructed by such land-owner so as to inclose its road; and where the railroad is rightly inclosed by such joining of fences, no additional fence need be constructed between the railroad and such inclosed lands.
    Motion for leave to file a petition in error to the District Court of Jefferson county.
    The original action was brought by plaintiff in error to recover for injuries to domestic animals, caused by the negligence of .the defendant in constructing and maintaining good and sufficient fences between the line of its road and an adjacent inclosure of the plaintiff.
    It appears that the plaintiff had constructed and maintained a good and sufficient fence between his field and the-railroad track, over which, however, some of plaintiff’s animals had escaped, and were killed upon the track.' The testimony also tended to show that the fence built by the plaintiff was suitable to inclose the railroad, and that the company had constructed cattle-guards, and connected them with the plaintiff’s fence for the purpose of inclosing its road. These connections, however, were not in repair at the date of the injury; but it does not appear that the insufficiency of the cattle-guards or their connections contributed to the injury of such of the plantiff’s animals as had escaped over the fence above described. • Nor does it appear that compensation for the right of way over the plaintiff’s lands had been paid.
    The court instructed the jury to first determine whether' the plaintiffs animals had been injured by reason of the want or insufficiency of such fences as were by the law re • quired to be erected and maintained by the railroad company, and thereupon charged as follows: “ If you shall be satisfied from the evidence that the death of any of said animals resulted by reason of the want of such fences, your finding should be for the plaintiff upon that branch of the case, notwithstanding you may be satisfied that the owner of the field from which said animals had escaped, had erected a good fence between said field and the railroad, and not more than twenty-three feet from the track of the railroad, and over which the animals escaped. I hold that the attempt of the owner to save himself from losing the use of his land, shall not be held to discharge the railroad company from the obligation imposed by law to erect and maintain fences,' except in those cases specially provided for in section 2 of the act of 1859, where compensation for the right of way has been made.” To this charge, the defendant excepted.
    A verdict and judgment were rendered for the plaintiff. Afterward, on error, the District Court reversed the judgment of the Court of Common Pleas, and this motion is made for leave to file a petition in error to reverse the judgment of reversal.
    
      Trainer &; Cook, for plaintiff in error:
    
      We claim that no matter how Haxton inclosed his land, it wras the duty of the railway company to have inclosed its railroad, by constructing a good and sufficient fence on each side of the same, and if the stock of ITaxton got on its railroad, and were killed for want of such fence, that the railroad company is liable for the damages Haxton sustained. Act of March 25,1859 (56 Ohio L. 62); 8 Edwards, 487; M. $■ C. R. R. Co. v. Stephenson ^ Brown, 24 Ohio Bt. 48; Antesnel v. The C. $ N. W. R. R. Co., 26 Wis. 145; McCall v. Chamberlain, 13 Wis. 713; 19 Wis. 145 ; Blair v. M. &¡ B. du C. Ry. Co., 20 Wis. —; 21 Wis. 39; 7 Wis. 232; 40-CaL 532; 29 Ind. 40; 35 N. Y. 641; 13 N. Y. 42; 38 N. Y. 433; 44 111. 76; 41 111. 226; 54 111. 528.
    
      J. Dunbar, for defendant in error.
   By the Court.

As we understand the charge of the Court of Common Pleas to the jury, there was error in it, for which it was properly reversed by the District Court.

' Under section 2 of the act of 1859 (56 Ohio L. 62), where the/owner of lands adjacent to a railroad constructs and maintains a good and sufficient fence, inclosing his own lands in such a manner that it may be made to answer the purpose of inclosing the railroad also, the mere fact that no compensation was paid for the right of way through such lauds, does not prevent the company from joining its fences to the fence constructed by the land-owner so as to inclose its road. And when the railroad is rightly inclosed by such joining of fences, no additional fence need be built between the railroad and such inclosed lands.

Motion overruled.  