
    Hughes v. Hannibal & St. Jo. R. R. Co., Appellant.
    
    1. Railroad: non-liability fob cattle drowned on company’s land. The forty-third section of the Railroad Law, (Wag. Stat., p. 310, § 43,) imposes upon a railroad company no liability to the owner of cattle accidently drowned in an unenclosed well situated on the company’s right of way, notwithstanding the loss is occasioned by the failure of the company to erect and maintain proper fences as required by that section.
    2. Unenclosed Lands: prorpietor not liable for accidental injury to cattle coming upon them. The proprietor of unenclosed land is under no obligation to make it safe for pasturage, and if the cattle of another stray upon it and are killed by drowning in an unguarded well, there is no liability resting upon him for the loss. A railroad company stands upon the same footing as any other proprietor,
    
      
      Appeal from Macon Court of Common Pleas. — IIon. Wil-' liam A. G-uyselman, Judge.
    
      James Carr and PE. B. Leach for appellant.
    
      J. L. Berry for respondent.
   Hough, J.

— This was an action to recover the value of a heifer accidently drowned in an abandoned tank or well, situated in the open prairie in Macon county, upon the line of defendant’s right of way, four feet eight inches of its diameter being on the defendant’s land, and four feet thereof, on the land of the adjacent proprietor. -

The plaintiff bases his right to recover upon the all eged negligence of defendant in failing to enclose or cover said well. No statutory liability is imposed upon the defendant for injuries like the one complained of, although occasioned by its failure to erect and maintain fences as required by the 43rd section of the law in relation to railroad companies. • The liability of the defendant is therefore, such only as is imposed by the common law. Lafferty v. Han. § St. Jo. R. R., 44 Mo. 291; Ill. Cent. R. R. Co. v. Carraher, 47 Ill. 333.

Who made the excavation does not appear. It was used by the defendant for the purpose of a tank or watering place until a tank was erected at another pi ace near by, when the well was abandoned and left uncovered'and unenclosed. To divest the case of ail embarrassing incidents, so far as the plaintiff is concerned, we will suppose the excavation to have been made by the defendant, wholly upon its own lands. So far as the present inquiry is concerned, the railroad company stands upon precisely the same footing as other land owners, and only those acts required of natural persons, under like circumstances, can be required of the defendant.

In this State, and in others similarly situated, it has been held that the owner of cattle may permit them to run at large and stray upon the unenclosed lands of others without incurring any liability for such technical trespass, but it has never been held that the owners of the unenclosed lands are required to make them safe for the pasturage of such stray cattle. The existence of any such duty, on the contrary, is distinctly denied. Ill. Cen. R. R. Co. v. Carraher, 47 Ill. 333. The law on this subject is so perspicuously and succinctly stated by Chief Justice Gibson, in the case of Knight v. Abert, 6 Penn. St. 472, that we transcribe and adopt his views as applicable to and'decisive of the present case. In thu. case the defendant was the owner of unenclosed woodlands, in which he had dug an ore pit. The plaintiff’s ox had wandered on the land and fallen into the pit, and was thereby killed. For this the action was brought.

Gibson, C. J.:

“ In this, and perhaps in every American State, an owner of cattle is not liable to an action for their browsing on their neighbor’s unenclosed woodland. But it follows not because such browsing is excusable as a trespass, it is matter of right. It is an immunity, not a privilege, or at most a license revocable at the will.of the tenant, who may turn his neighbor’s cattle away from his grounds at pleasure. Their entry is, in strictness, a trespass, which, for its insignificance, is not noticed by the law, probably on the foot of the maxim, de minimis, or perhaps, because it is better that all waste lands should be treated as common without stint.' It certainly saves vexatious litigation. The particular loss from it is inappreciable, even as a subject of nominal damages, and would probably be held so even in England, where waste land is altogether worthless. But even if an owner of cattle had the right claimed for him, the tenant would not be bound to expend his money or his labor in preparing his land for the safe and convenient en-j oyment of it. A man must use his property so as not to incommode his neighbor; but the maxim extends only to neighbors who do not interfere with it, or enter upon it. He who suffers Ms cattle to go at large, takes upon himself tbe risks incident to it. If it were not so, a proprietor could not siuk a well or a saw pit, dig a ditch or a mill race, or open a stone quarry or a mine-hole on his own land, except at the risk of being made liable for consequential damage from it, which would be a most unreasonable restriction of his enjoyment. He might as well be required to level a precipice, put a fence round a swamp or cut down reclining trees. It is enough in all reason, that his neighbor’s cattle have the range of his forest, without imposing on him the duty of looking to their safety. If the owner of them do not choose to enjoy his license on that footing, let him keep them at home, or send a herdsman along with them. The law imposes no such duty on the tenant.”

The cases relating to excavations made so near a public way as to be dangerous, under ordinary circumstances, to persons passing upon the way, are inapplicable to the ease at bar and need not be noticed.

The judgment of the common pleas court will be reversed.

The other judges concur.

Reversed.  