
    Soward v. The Chicago & N. W. R. R. Co.
    Railroad: liability eor stock killed. A railroad company is not liable, under chapter, 169 Laws of 1862, for stock killed at tlie crossing of a road, used and traveled by the' public as a highway, though the route thus traveled was in fact outside of the survey or line of the highway, as established by the county authorities.
    
      
      Appeal from Boone District Court.
    
    Saturday, February 24.
    - Action to recover for stock, a mare and mule, killed by the defendant’s train. The plaintiff in his petition alleged that the stock was killed on the unfenced track of the defendant’s railroad, where it had the right to fence; that such killing was without the fault of plaintiff; that he had served notice and affidavit of said loss, etc., upon defendant, who had neglected to pay as required by statute, and plaintiff was entitled to recover double damages, in the sum of $500. The defendant, by answer, denied the allegations of the petition, and for further answer averred that the stock was injured upon a public highway, where the defendant had no right to fence, and without negligence by defendant. The cause was tried to a jury, who found a verdict for the plaintiff for the full amount claimed, $500. Tt had been once before tided with like result, and, on appeal to this court, the judgment was reversed. The case is reported in 30 Iowa, 550. The ■district court having rendered judgment upon the second verdict, the defendant again appeals. The further necessary facts are stated in the opinion.
    
      Henderson & Merrimcm for the appellant.
    
      Hull & Bamsey for the appellee.
   Cole, J.

The evidence tends to show that a public highway was laid along the line between sections 33 and in township 81, range 27 west, about the year 1855 ; that the defendant’s railway was constructed there in 1866; that prior to its construction the country was open prairie, and the travel at certain seasons of the year, and when the ground was wet, was from one hundred and fifty to two hundred and fifty yards west of the line of the highway where the railroad crossed it; that the defendant made a highway crossing, with proper cattle guards, save that they were ninety-three feet apart, at this point or line of travel, and fenced the balance of its railroad; that there was no other highway crossing for a distance of seven miles — two miles east, and five west; that the public had used the highway and crossing for a little over two years before the injury sued for in this action, which occurred August 31, 1868, at that crossing; but at that time, the land was fenced up on the north side of the railway, and was still open prairie on the south. No negligence by the defendant’s agents, in connection with the injury, is shown or claimed.

The defendant, among others, asked the court to give the following instruction: “If the jury find that for three or more years before the injury complained of, the crossing was used by the public generally as a public highway, then it is a public highway, in contemplation of law, and defendant had no right to fence the same.” The court refused to give this, and the other instructions asked by defendant, and which were grounded upon the same theory, and gave the following, and others, resting upon the same general view, to wit: “ If you find from the evidence that the crossing of the public highway was at a point different from the crossing established by the defendant, and that it had closed up the regularly laid highway, and had knowledge of the true place of crossing, then defendant is liable, and your verdict should be for plaintiff.”

The case was thus made to depend upon the question whether railroad companies are, in this State and under our statute, required to fence their roads at all places except the crqssing of legally laid highways — that is, highways de.jur£ ;■ or whether tíqey are excused from fencing across the highways de fado.. The district court held the former, and, in our view, committed an error in so doing. We state briefly some of our reasons for this view..

If railroad companies are required to fence their railways across all highways that are not legally laid, they would fence across very many of our public roads which are now extensively traveled and are supposed to have been legally laid, but are not. This is abundantly established by reference to our own reports, which show many cases wherein public and well-traveled roads have been held not legally laid. See The State v. Kimball, 23 Iowa, 531, and the road cases therein referred to. It will be remembered that by act of our legislature (Rev., § 327), certain powers connected with establishing roads were given to the clerk of the district court. Many roads were laid under that statute, which was afterward held to be invalid, and, as a necessary consequence, those highways were not legally laid. The State v. Kimball, supra. And. yet most of those highways continue to be used by the public. Shall we now so construe the statute requiring railroad companies to fence their roads, as to compel them to fence across these highways thus laid, which are not highways de jure, but only highways de facto ? The statement of the question begets its own negation.

And as a good illustration of the fact we are considering, it may be stated that, in this case, the plaintiff undertook to prove by the records of the county court that the highway, as claimed by him along the section line, was legally laid; but there are such manifest defects in the. proceedings, as shown by this abstract, as might compel us to hold that it was not a highway de jure, and under the plaintiff’s theory the railroad company would be required to fence across it.

But further than this, the public acquires valuable rights of highway by prescription, or continued use for more than ten years. Suppose a railway .Company should be constructing its line of road across a public traveled way, which has thus been used for nine years and six or more months, but not the full time requisite to perfect the public right and make it a highway de jure, to require such company to fence its road across such public traveled way, would be requiring it to defeat the right which the public might otherwise acquire.

And, on the other hand, suppose such railroad company should refuse or neglect to construct suitable and proper crossings and approaches at such public traveled highway, it occurs to us that it would not constitute a sufficient defense for the railroad company, when prosecuted for such refusal or neglect, to show that the highway was not legally established, or had not been used by the public for a sufficient length of time to constitute it a highway by prescription.

In other words, the same rule respecting public rights, de jure and defacto, must obtain in suits between railroad companies, and other corporations and persons, as ordinarily obtains between individuals. That is, that when a claim is grounded or a defense is rested upon an incident growing out of a public right or franchise, it is sufficient to show such right or franchise de facto. This rule has frequent illustrations in the reports of cases involving the acts of public officers defacto. See The People v. Cook, 8 N. Y. 67, and cases there cited. Of course the rule is different when the direct question is as to the lawful authority to exercise the right or franchise in controversy. And, of course, there must be such user of the road in question as to constitute it a road de facto.

It follows, that the court also erred in admitting the evidence tending to show that a public highway was laid along the section line; for, whether it was or not, was wholly immaterial. So, also, was there error in admitting parol evidence of the contents of a written notice, without first accounting for the absence of the writing itself.

Reversed.  