
    J. A. McCormick, Respondent, v. St. Louis, Iron Mountain & Southern Railway Company.
    St. Louis Court of Appeals,
    February 8, 1886.
    Legislative Powers — Railroads—Fences.—The power of the legislature of 1860 to contract the territorial limits of a town was absolute ; and when the limits were so abridged, a railroad company was bound to fence that portion of its road which ran through uninclosed fields thus thrown outside the new limits.
    Appeal from the Washington County Circuit Court, John L. Thomas, Judge.
    
      Affirmed.
    
    George EL Benton, for the appellant.
    John F. Bush, for the respondent.
   Rombauer, J.,

delivered the opinion of the court.

In overruling the motion to dismiss, we filed an opinion herein, at the present, term, which incidentally disposes of the only point presented by this appeal.

The action is one for the killing of a horse by the defendant’s locomotive. The statement charges that the horse was thus killed at a point on the defendant’s road, where it runs through uninclosed lauds, and where the defendant, by statute, was required to maintain sufficient fences, and that the accident complained of was owing to the omission of the defendant’s duty in that regard. The proof bears out the statement.

The sole defence rests on the ground that those uninclosed lands formed part of the town of Irondale, as originally platted and recorded, and that the statute of May 16, 1860, which abolished and vacated that part of the town was unconstitutional and void. That, therefore, the place where the horse was killed was still part of the town, and the defendant was under no legal obligation to fence its road there.

Instructions were asked by the defendant on that theory, which the court refused.

The instructions were properly refused. The power of the legislature, at the date of the enactment in question, to extend or contract the limits of a town, was absolute, and not subject to any judicial control. St. Louis v. Russell, 9 Mo. 507; St. Louis v. Allen, 13 Mo.400 ; Walden v. Dudley, 49 Mo. 421; Gibony v. Cape Girardeau, 58 Mo. 141, 144; Railroad v. St. Louis, 66 Mo. 256.

The judgment is affirmed.

Thompson, J., concurs; Lewis, P. J., is absent.  