
    Jonathan Crandall, App’lt, v. John B. Eldridge, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1887.
    
    1. Division fences—1. R. S., m. p. 353, §§ 30, 37, as amended by Laws-1838, chap. 261.
    It is provided by 1 R. S., m. p. 353, sec. 30, that where two or more-persons shall have lands adjoining, each of them shall make and maintain a just and equal proportion of the division fence between them in all cases-where each of such adjoining lands shall be cleared oi improved. Audit is further provided by section 37 of the same act as amended by Laws 1838, chapter 261, that for the neglect of this duty the party injured thereby may recover of the one in default such damages- as may accrue to' his lands, crops, fruit trees, shrubbery and fixtures connected with the land. Meld, that this statute confers no rights or duties except as between the owners of adjoining lands and those who hold under them, and hence negligence, with respect to division fences, does not concern the general public, and hence gives no rights springing from the violation of a public duty.
    8. Same—Extent of liability.
    Where the plaintiff’s colt passed through a division fence which defendant was bound to repair, the defendant was not liable for the death of the colt caused by its drowning in the defendant’s morass.
    
      James White, for app’lt; Job G. Sherman, for resp’t.
   Landon, P. J.

Independently of the statute the plaint-. iff would have no right of recovery, first, because he would have*been bound to restrain his own cattle; second, the defendant may lawfully retain upon his premises the pit or morass which nature placed there. He is no more obliged to erect guards around it than he would be around a natural lake or pond in which men or animals might be drowned. The statute, however, requires this defendant to keep this division fence between his and the plaintiff’s lands in repair. 1 R. S., m. p. 353, § 30. It prescribes the nature of the liability incurred if he neglects this duty. That liability was by the Revised Statutes (id., § 87), declared to be a liability to pay to the party injured all such damages as shall accrue thereby.” An attempt was made in the case of Clark v. Brown (18 Wend., 213), to make a defendant liable under this statute for the cattle of the plaintiff, which passed from the plaintiff’s land upon the defendant’s land through a defective division fence which the defendant neglected to keep in repair, and there died from eating too much green corn which the defendant was lawfully raising. The case, as we are told in Stafford v. Ingersol (3 Hill, 38), led to the amendment of the statute the next year (Chap. 261, Laws 1838, 3 Edm., 800), which restricts the recovery of the party injured to such damages as shall accrue to his lands, crops, fruit trees, shrubbery and fixtures connected with the land, and thus the statute stands now. We are cited to no case in which relief under this statute has been given because of injuries sustained by cattle which escape from the owner’s inclosure by reason of such defective fence.

It is urged that since the statute enjoins a duty, the nonperformance of it is negligence, and the injured party is entitled to fuE compensation for aU the injuries he sustains. .

But the statute in regard to division fences authorized the parties to elect between their common law rights and liabilities and their statutory rights and liabilities, and the inference is strong that when the parties elect to be governed by their statutory rights and liabilities, they only elect to assume such liabilities as the statute directs.

We have held at this term (Graham v. President, etc., of Delaware and Hudson Canal Co., 12 New York State Reporter, 390), that a railroad company is liable as for negligence for the cattle of the adjoining owner, killed by falling into the cut or excavation through which the railroad passes, the company having failed to fence the same, although the statute which imposes the duty declares the liability in case of omission to be for “damages which shall be done by the agent or engines of any such corporation to any cattle, horses,” etc. We held that the defendant was guilty of negligence and liable for the full measure of the injury caused thereby, and was not exempted in the case of injury to the cattle of the adjoining proprietor from liability for such injuries as were caused, otherwise than by engines and agents.

It is quite clear that the legislature, in framing the act relative to fencing railroads, understood that the statute, relative to division fences, only provided for damages done by cattle to land and crops and not to the cattle themselves, and they, therefore, extended the railroad statute so as to cover damages done to the cattle escaping from the lands of the innocent and adjoining owner. The cattle statute is construed as devolving a duty for public ends upon the railroad company, and thus imputes negligence for its nonobservance, and as a consequence gives a remedy to the adjoining proprietor specially injured by such non-observance for the damages suffered by him. The division fence statute tenders to adjoining owners an optional relation and regulates its conditions. When adopted, its conditions are adopted, and public policy does not require that the consequences of a neglect to observe the duty should entail any further liability than the statute prescribes. The rule applies, that when a new right is conferred upon one, and a corresponding duty is enjoined upon another by statute, the defaulting party is answerable to the other party, only to the extent prescribed by the statute. But, when the duty enjoined >s for the benefit of the public as well as for persons holding special relations to the party upon whom the duty is enjoined, we think the neglect of that duty gives to the party injured all the relief due to him in either or both relations. The division fence statute confers no rights or duties, except as between the owners of adjoining lands and those who hold under them, and hence negligence with respect to division fences does not concern the general public, and hence gives no rights springing from the violation of a public duty. It follows, therefore, that when the plaintiff’s colt passed through the division fence which defendant was bound to repair, the defendant was not liable for the death of the colt caused by its drowning in defendant’s morass; the colt, as between the parties, was lawfully there, and when the colt fell into the morass it was a casualty for which the defendant was not hable.

The judgment should be affirmed, with costs.

Fish and Parker, JJ., concur.  