
    The North-Eastern Railroad Company vs. Lavinia Sineath.
    On an appeal by the N. E: R. R. Company from the assessment by commissioners of damages sustained by a land-owner in consequence of the location of the road through his land, the jury are not limited to the amount fixed by the commissioners,.but may give higher damages.
    Damages cannot be assessed by the jury for fencing along the road through unenclosed land used for grazing.
    BEFORE FROST, J„ AT CHARLESTON, FALL TERM, 1853.
    Tbe Report of bis Honor, the presiding Judge, is as follows: .
    “ This was an appeal, by the Railroad Company, from the appraisement, by the Commissioners, of the damages, sustained by the defendant, in consequence of the location of the road through her land. The defendant’s land is twelve miles from Charleston, on the State Road to Columbia. The dwelling-house of the defendant was formerly and is still kept as a public house, but has now no custom. The S. C. Railroad passes through her tract of land to the West of the settlement, about half a mile from it, where there is a station. The route of the North-Eastern Railroad is also through her land, about half a mile east of the settlement. The tract consists of three or four parcels, bought by the deceased husband of the defendant, at different times. The road is located so as to extend eight thousand three hundred feet through her land, taking-twenty-six acres; and the Commissioners assessed her damage at one thousand four hundred' and five dollars. In making this appraisement, the Commissioners estimated the land taken at from six to ten dollars per acre ; and the cost of fences, on both sides of the road, along its whole extent, was included in the sum allowed. Eor a part of the way the road passed through cultivated grounds ; but for the greater part it passed through woodland. The evidence showed the land to be very poor, and little valuable for cultivation. Its chief value consisted in the timber, which was cut and sent to Charleston for sale. Goose Creek bounded the tract towards the East, and on it there were three landings used for the sending of wood to market. The other chief value of the land consisted in the range it afforded for cattle. From cutting wood and raising stock the defendant derived an income. Some provisions were planted. The stock range was on the creek, and the road passed between the settlement and the creek. The best timbered land was to the west of the road. Thus the road was located between the settlement and the cattle range, and between the wood-land and the landings, to which it had to be hauled. For about one thousand feet, no material change of the surface was made by the track of the road; but, for the rest of the distance, the road bed would average about four feet in intrenchment and excavation, the highest embankment or deepest excavation being eight feet. The structure of the road would make the hauling of wood to the landings more laborious. Some deep swamps ran up from the creek across the road. If the road was not there, wood could be carted through the pine land directly to the nearest landing. It could be carried over the road only where crossings might be made. These it would be difficult to keep in order. A short distance under the surface quick-sands were said to occur. The cost of hauling wood was from seventy-five cents to one dollar per mile, for a cord. Wood might be sold at the landing from two dollars fifty cents to four dollars per cord. The witnesses estimated variously the increased distance of hauling made necessary by the road. The load would be diminished by the necessity of the ascent, when it was hauled over a high embankment or a deep cut. The South Carolina Railroad did buy some wood at the station on defendant’s lands, but their chief supply was brought from above. They would give only one dollar twenty-five to one dollar fifty cents a cord, at the station. There was evidence that the South Carolina Railroad had been very destructive of cattle. The Rev. Mr. Danner said he could maintain seventy head of cattle on his range, and would have had that number if it were not for the destruction of them by the trains. He said he did not own a cow. The last of his stock, five or ten head, he had sold. The trains had destroyed a great many. He would not say how many, any nearer than that from ten to sixty head had been killed. He said that he had recovered at one time from the South Carolina Railroad Company, three hundred or four hundred dollars. He had been paid for cattle killed at various times. But, for a long time, the company refused to pay: and it cost more to recover the damage, by suit, than the cattle killed were worth. Besides this, payment of the value of the cattle killed was no compensation for the destruction of them. He said he had not butter, nor even milk, now, for the use of his family. This witness had acted as a Commissioner to assess the damages of lands, and h,ad voted for five thousand dollars, while the Commissioners allowed one thousand seven hundred and fifty dollars.
    
      “ The Rev. Mr. Leadletter also testified to great destruction of his cattle. He stated only the loss of a ram. He, too, had acted as a Commissioner in Vose’s case, and had proposed three thousand dollars, while the commissioners assessed a much less sum.
    
      “ Sims’ place is about thirteen miles from the city. The South Carolina Railroad does considerable damage to a cattle range; many are killed. His range depreciated twenty-five per cent. by the railroad. He has lost his best cows; was paid for one. The cost of recovery exceeds the value of the cattle killed. Stock yields, in annual profit, about twenty-five per cent, on the value of the entire stock. The defendant had about seventy head. Other witnesses could not say how many; but that defendant had a large stock. She had offered to buy a tract of land, where her cattle might range away from the railroad. The profits had been much reduced; but she sold some calves last year. It was further in evidence that a railroad injures timber land by burning up the young growth, and injures a range for cattle by burning the grass and young cane. All the witnesses concurred, in saying that the tract of the defendant was valuable for its timber and cattle range, and for little else. Rhame,, one of the Commissioners, testified that defendant’s land was valuable only for its timber and range. The South Carolina Railroad destroyed many cattle. They would go on the track of the road. The grass on the embankment w^as better than' on the land adjoining. Stock raising had to be given up about defendant’s. Cattle affords the ‘best yield’ of the land. One thousand dollai’s in cattle will yield two hundred and fifty dollars per annum, besides milk and manure. He would not have the road located, as it is, for three thousand dollars. He would give five thousand dollars for defendant’s land as it stands. Traxler testified that defendant’s tract contains between two thousand five hundred and three thousand acre3. The several tracts of which it is composed, had cost defendant’s husband about seven thousand four hundred dollars. The value had been increased. But he said the railroad was of no advantage to a wood-cutter who had water-carriage to Charleston, and three landings, as the defendant had. The railroad Company gave about one-third of the price which could be obtained for wood at the landings. These three landings are a great advantage to the land; if cut off, that would be a great disadvantage.
    “ Prevost, Rhame, Sims, Traxler, Danner, and Leadbetter all testified that a railroad did not increase the value of lands within fifteen or twenty miles of the city. It afforded no facilities for conveying farm produce to market, nor for bringing manure from the city.
    “ Rhame had sold his place on the South Carolina Railroad because it was an annoyance; and Danner said he had bought bis tract cheap, because the seller was dissatisfied with a location on the railroad.
    “ Messrs. Ferguson, Ravenel and Furman, expressed the opinion that railroads do enhance the value of land. That the effect of a railroad is to increase the population of Charleston, and give increased value to farming lands in its vicinity. Neither of them stated any sales or other facts to show that the South Carolina Railroad had, within fifteen miles of the city, enhanced the value of lands. Ferguson knew G-oose Creek Parish by riding over the State Road to his plantation, in St. John’s. Ravenel was also over the State Road to his plantation on the east side of Goose Creek. Furman said that he had been agent for some lands in Goose Creek. One tract of tAvo hundred or three hundred acres had been bought for seven hundred and fifty dollars. He sold this tract to Mr. Waring for the same price, tAventy years after the South Carolina Railroad had been constructed Avithin a mile of it. This place is about twelve miles from Charleston. It had been a long time advertised for sale before it was sold to Waring. Waring goes to the place chiefly by the plank road, Avhich has been laid on the State Road, and finished for the distance of seven miles from Charleston. Waring, he supposes, Avould not now take Avhat he gave for the land.
    “ The jury were instructed that, by an appeal from the appraisement of the Commissioners, the valuation was opened as a new question, and that their estimate of benefit or damage must be made according to the evidence submitted to them ; and that, as they might find less, they might also find more than the Commissioners had done, although the defendant had not appealed.
    “ They were further instructed that as the expense of fencing was alloAved where the railroad passed through cultivated land, it would be proper to make that alloAvance if it passed through a grazing farm or a tract of land which was used for the pasturing of cattle.
    
      “ They were further instructed that the increased labor’ and cost of hauling wood to the landings, which the railroad might create, was a proper subject for the assessment of damages; and so they were instructed woul 1 have been the injury to the value of the tract as a cattle range, in consequence of the structure of the road; but that item of damage was merged in the allowance for fencing.
    “ They were advised that the weight of the evidence tended to the conclusion that the North-Eastern Railroad would not appreciate the value of defendant’s land. And, on this subject, their attention was directed to the fact that the South Carolina Railroad now passed through defendant’s land, and also to other particulars of the evidence.
    “ It was intimated to them that they should not exceed the appraisement made by the Commissioners, who were persons so well qualified to decide. But they by their verdict increased the assessment to two thousand dollars.”
    The Company appealed on the grounds:
    1. That there was strong evidence in the nature and facts of the case, as well as from witnesses, that the lands of the owner had appreciated, or must have necessarily appreciated in value, in consequence and anticipation of the projected road; and his Honor erred in charging that the weight of evidence was the other way.
    2. That his Honor erred in charging that the Commissioners and the jury were warranted by law in giving the' owner compensation for fencing along both sides of the track of the projected road, throughout the whole length of her tract, and not for fencing only of the cultivated land.
    3. That his Honor erred in charging that the Commissioners and the jury were bound or at liberty to give conjectural damages for the possible killing of cattle or obstruction of cartage by a railroad not yet built.
    
      4. That his Honor erred in charging the jury that they were at liberty to surcharge the assessment of the Commissioners.
    5. That the verdict of the jury, so far as it surcharged the assessment, was excessive, unwarranted, and unsupported by the evidence, against the acquiescence of the owner and contrary to the charge of the presiding Judge.
    6. That the verdict of the jury was in the foregoing and other respects contrary to law and evidence, and the justice of the case.
    
      Martin, Teadon, for appellants.
    
      Magrath, Pressly, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The .provision under which the assessment made by the Commissioners, and from which there is an appeal, is the 10th Section of the Charter of the Greenville and Columbia Railroad Company. 11 Stat. 327. That section directs the Commissioners in making the assessment “ to take into consideration the loss or damage which may occur to the owner or owners, in consequence of the land or the right of way being taken; and also the benefit or advantage he, she or they may receive from the establishment, or erection of the Railroad and works, and to state particularly the nature and amount of each; and the excess of loss and damage over and above the benefit and advantage shall form the measure of valuation- of said land or right of way.”

Before considering the question which arises out of this part of the section, it will be necessary, to consider and decide a preliminary question arising out of the 4th and 5th grounds of appeal — could the jury assess a higher value than that fixed by the Commissioners ? If this was strictly an appeal I should not hesitate in saying they could not. But this is not strictly an appeal, although so called by the Act. For, on appealing to the Court at the next session after the valuation, satisfactory proof must be given that the appellant has been injured by such valuationand thereupon the Court is to order a new valuation to be made by a jury, who shall be charged therewith.

According to the wording of this part of the section, it would seem that the appeal should be made to the Court, and'then if upon a showing by affidavits, or from an examination of the Commissioners’ valuation, it should seem that the appellant was injured, the Judge presiding should order an issue to be made up forthwith, so as to charge a jury with the question of injury and benefit to the owner of the land by the location of the Railroad. This the law 'directs shall be a new valuation, and hence there can be no doubt that the Commissioners’ previous-valuation can be no standard for the jury.

The second ground of appeal makes the only other question, upon which it is deemed important to express an opinion. The Judge below instructed the jury that they might in assessing damages or making a new valuation, allow for fencing along the line of the Railroad through unenclosed lands used for grazing. This instruction was, I think, erroneous: and this I propose showing in as brief a way as possible.

In Partlow vs. The G. & C. R. R. Co., 5 Rich. 428, Judge Frost said in answer to the third ground of appeal, “the expense of fencing along the road, when it passes through fields, is properly an item of damages.” It might be enough to say that this dictum decides nothing against the appellant; on the contrary its implication seems to favor the conclusion, that it is only when the road runs through fields that fencing would be a proper item. But it really has not and ought not to have any controlling effect on the very matter of which it speaks, further than the respect and weight which is rightfully due to an able Judge, our late esteemed associate. For it was a mere obiter, notwithstanding it was in answer to a ground of appeal: the case turned upon and was decided on the ground, that the increased saleable value of this land was a part of the benefit and advantage” to the owner from the location of the road, and must be set off against his damages.

In deciding “what loss or damage may occur to the owner,” the jury are not to resort to mere'possibilities. The natural or necessary consequences from the location are to be looked at, as the cutting off the owner from a part of his land, the necessity to remove a fence and replace it so as to secure a field, when the road run's upon and opens one side of it, the draining of a well or spring by the excavation, as well as the actual taking and occupation of his soil. But fencing along the whole line on both sides of it, in cultivated or uncultivated, enclosed or unenclosed lands, is neither a natural nor a necessary consequence of the location of a Railroad. When it is located through a field, cattle guards, where it enters and leaves, are all which are either necessary or usual. Fences on both sides would subject the owner to more inconveniences by far than the Railroad. For then he would have his fences to climb or pull down, whenever he wished to pass from one part of his plantation to the other. Such a system of fencing might operate as a pound to gather his cattle for slaughter, by an engine, and to break up and destroy it, and the trains, to the endangering of life and limb of all passing. But in fact fences are not built along Railroads in this State, in even enclosed lands. Persons passing over the Gr. and C. Railroad, through the very land for which fencing was allowed, in Partlow’s case, will find that not a solitary rail has been laid alongside the road.

It is argued, however, that to prevent the killing of stock, it is necessary that there should be fences. I have already suggested that instead of protection, it might be the means of destruction. If the questions were new as to the liability of Railroads for such injuries, I should be very much inclined to hold that a Company were not liable for such an injury, unless upon clear proof of negligence in running the train. For the charter of a Railroad makes the use of it by a locomotive, just as lawful as the use of a highway by a wagon or coach. Who would suppose that the owner of a wagon or coach was liable for a hog killed by being driven over by the wagoner or coachman, unless negligence was shown? The runner of a locomotive knows very well that he perils his own life, and all who are dependant upon his care, when he runs over a cow or other animal.- It is »o rare that men are reckless enough to incur such peril designedly, that I think the presumption should be in his favor, and not against him. But in Danner vs. The South Carolina Railroad Company, 4 Rich. 334, a different rule was adopted. In that case it was held, that the Company was liable for killing a cow on its track through the land of the plaintiff, unless it could show that such killing was the result of an inevitable accident. This provides ample means of compensation for all such possible injuries, and hence there can be no necessity to allow for fencing to guard against it. Indeed, if the land owner (this appellee) were allowed for fencing to guard against this contingency, and her cattle Should hereafter be killed, she would not be allowed to recover for them, unless Icilled wilfully. This, I am sure, is enough to dispose of the argument which we have been considering.

I agree fully with the annotator on Railway Cases, (1 Railway Cases, 212, note,) that at Common Law the owner of land was not obliged to fence against the cattle of other persons, and that the owner was bound to keep them on his own land. If they went upon the land of another, he (the owner of the cattle) was liable for any damages therefrom resulting, and that, generally, he could not recover for any injuries which unintentionally were inflicted upon them. These principles would not only excuse a Railroad Company from damages for accidentally killing cattle on their track, but might make the owner liable for any damages which the Company might sustain by running over them. For the Company is the owner of tbe track, either in fee or as an easement granted to its exclusive use, and hence, therefore, cattle, generally, could not lawfully be upon it. But in this State, woodland or unenclosed land is regarded very much as common. Every one may hunt over it — cattle may range and pasture on it. This may, therefore, justify the exception carved out by Danner vs. The South Carolina Railroad Company.

The obligation to fence depends altogether upon Statute. In this State, to entitle a party to remuneration for cattle trespassing upon his grounds, he must have a fence five feet high. Beyond this, we have no law on the subject. That Act cannot, however, touch this case, and it may therefore be laid down broadly that the Railroad Companies are under no obligation to fence their tracks.

In other States, such obligation has been imposed by 'law. In Maine the Statute law requires every Railroad Company to erect and maintain sufficient fences on each side of the land taken by them for a Railroad, when it passes through enclosed or improved lands, but there being no such requisition in reference to unenclosed lands, it was held they were under no obligation to fence against them. Perkins vs. The Eastern Railroad Company, and The Boston and Maine Railroad Company, 1 Railway Cases, 144. That case would be enough for this case, for here the claim is entirely for unenclosed land.

It is very true, that many cases can be found in which fences have been allowed: but they are generally when the Charter of Companies or some general Act has made provision devolving upon them such a burden. So, too, when such decisions have been made, it has been held that no compensation could be made to the owner for an animal killed, unless culpable negligence could be shown .in running the road.

In this case we are of opinion that no allowance for fencing can be made, and it would also seem to follow that the possible killing of cattle in any other way than by inevitable accident, ought not to enter into the assessment of damages. Bor in all other cases the Company is liable for such an injury, and the damages as the injury occurs can be recovered.

The motion for a new trial is granted.

Withers, Whitner, G-loyer, and MüNro, JJ., concurred.

Wardlaw, J.

I agree that the jury were not limited by the assessment of the Commissioners. I agree that there was error in instructing the jury, that “it would be proper to make the allowance” for fencing. This seems not to have been an opinion founded upon the peculiar circumstances of the case, but to have been'the application of a general rule, which it was supposed had been established as to cultivated lands, and which it was thought should in analogy be extended to a grazing farm in forest land. I do not think that any general rule on this subject had the sanction of the Court in Partlow's case: and I would find it very difficult to define the circumstances which limit a general rule, so as to allow it for good reasons to embrace cultivated fields, and not for reasons equally good to extend to the immense tracts of pine lands, all grazed upon by cattle, through which Railroads do run or may run in this State. Fencing is, I think, like a bridge over an excavation, or a cattle guard, a matter which by contract a Railroad Company may assume, or which, where no agreement on the subject will be made by the Company, may or may not, according to circumstances, be taken as a measure of certain items of loss or damage in the making of an assessment. By our law, neither the land owner or the Company is bound to fence along the Railroad: the interest which the public may have in the matter has been wholly overlooked. The Company is, therefore, not liable for cattle killed by a train, in all events, as it would be if the killing resulted from its neglect of the duty of fencing imposed upon it, but is liable only for negligence established by presumption or otherwise. The allowance for fencing made in an assessment would be only an allowance for the damage which might come from the land owner’s cattle being killed, in cases where the- killing could not be proved, or where ~there was no negligence on the part of the Company. It might serve to shift the presumption concerning negligence, where the land owner’s cattle had been killed, from the Company against whom it is now raised, to the land owner himself, who would have been paid to keep his cattle from the track: but it would not authorize the wilful or negligent killing of the land owner’s own cattle, and could have no effect as to the cattle of other persons. It would give neither the right nor the means for the Company to compel the land owner to make the fences, if he chose to run the risk and bear the burden of presumption which would result from his neglect.

The ultimate question in an assessment is, what is the loss or damage which has been produced or may be produced by the operations of the Company ? In one case it may appear that certain inconveniences or risks would be wholly or par- . tially obviated by fencing : the expense of fencing would then be the measure of so much loss as it would obviate. In another case the expense of fencing might greatly exceed the whole value of that portion of a tract which lies on one side of the Railroad, and that value, increased by the depreciating effect, if any, which the cutting off of that portion would leave on the remainder, ought to be the extreme measure of the loss. In one case no security against great danger could exist without a fence; in another, cheap cattle guards would preserve the desired enjoyment of the land. In every case the circumstances should be looked.to, and fencing be considered only as a means of estimating the pecuniary extent of the loss.

I concur in the result.

Motion granted.  