
    STAATS v. HUDSON RIVER RAILROAD COMPANY.
    December, 1866.
    A statute which does not take away any right nor impose a substantially new duty, but regulates, with additional requirements, a duty imposed by a previous act, is not to be deemed inconsistent with the previous act
    
    Thus the provision of the general railroad act, making the section requiring companies to construct fences and gates applicable to preexisting companies, if not inconsistent with their charters, makes it apply to a company whose charter required it to construct fences and left it to the land owners to make gates.
    The provisions of law requiring railroad companies to fence, &c., are to be regarded not merely as a regulation between land owners, but are to have an extended application as a police regulation for the safety of the public, 
    
    Philip S. Staats sued defendants, to recover damages for running over Ms horse, which escaped from its pasture, through a gate that was out of repair, upon the track.
    The company’s charter (L. 1846, c. 216, § 24), contained the following clause: “ Said corporation, before running any cars upon the said railroad, shall erect and thereafter maintain upon the sides thereof ... a fence of such height and strength as is by law required, as a division fence, . . . but this section shall not prevent persons owning or occupying lands adjoining the said road from erecting at proper and convenient places, where they may have occasion for crossing the said road for farming and other necessary purposes, suitable gates in the line of said fence, to facilitate such crossing, and to be kept in repair by the person using the same.”
    
    
      The general railroad law subsequently passed {L. 1850, c. 140, § 44), requires every corporation formed under its provisions “ to erect and maintain fences, . . . with openings or gates or bars therein. . . . Until such fences and cattle guards shall be duly made the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon, and after such fences and guards shall be duly made and maintained, the corporation shall not be liable for any such damages, unless negligently or willfully done.” 
    
    Another section (49) declared all existing railroad companies to be subject to the provisions of this and other sections, not inconsistent with the provisions of their charter.
    A subsequent act (L. 1854, Oi 383, § 8), contains a clause requiring that “ Every railroad corporation, whose line of road is open for use, shall, within three months after the passage of this act, and every railroad company formed, or to be formed, but whose lines are not now open for use, shall, before the lines of such railroad are opened, erect and thereafter maintain fences on the sides of their roads, . . . with openings or gates or bars therein, at the farm crossings of such railroad, for the use of the proprietors of the. lands adjoining such railroads, and shall also construct, where the same has not already been done, and hereafter maintain, cattle guards at all road crossings. . . . And so long as such fences and cattle guards shall not be made, and when not m good repair, such railroad corporation and its agents shall be liable; . . . . and when such fences and .guards shall have been duly made, and shall be kept in good repair, such railroad corporation shall not be liable for any such damages, unless negligently or willfully done.”
    
      The supreme court held, that "the general acts did not apply to this company.
    
      Lyman Tremain, for plaintiff, appellant;
    Cited Phelps v. McDonald, 26 N. Y. 82; Abb. Dig. 1 ed. p. 17, § 16; p. 79, § 310, cases cited; United States v. Palmer, 3 Wheat. 610; Smith 
      
      Com. on Stat. & Const. L. §§ 556-560; Suydam v. Moore, 8 Barb. 365; Milliman v. Oswego & S. R. R. Co., 10 Id. 87; Talmage v. R. & S. R. R. Co., 13 Id. 493; Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. (3 Kern.) 42; Brooks v. N. Y. & Erie R. R. Co., 13 Barb. 596; Marsh v. N. Y. & Erie R. R. Co., 14 Id. 364; Langlois v. Buffalo & Rochester R. R. Co., 19 Id. 366; Underhill v. N. Y. & Harlem R. R. Co., 21 Id. 489; Waldron v. Rensselaer & Saratoga R. R. Co., 8 Id. 394; Poler v. N. Y. Central R. R. Co., 16 N. Y. 476; Hance v. C. & S. R. R. Co., 26 Id. 428.
    
      John R. Reynolds, for defendants, respondents;
    Citedcases mentioned in the opinion, and Hance v. C. & S. R E. Co., 36 2K Y. 428.
    
      
       Compare People v. Tilphaine, 3 Park. Cr. 241; S. C., 13 How. Pr. 74; Village of Rome v. Knox, 14 Id. 268; People v. Snyder, Id. 78; Moore v. Westervelt, 3 Sandf. 762; Bartle v. Gilman, 18 N. Y. 260; Mitchell v. Halsey, 15 Wend. 241; Harbeck v. Mayor, &c. of N. Y., 10 Bosw. 366; Devoy v. Mayor, &c. of N. Y., 36 N. Y. 449; affirming 39 Barb. 169; Livingston v. Haines, 11 Wend. 329; affirming 3 Paige, 528.
    
    
      
       Compare Labussiere v. N. Y. & New Haven R. R. Co., 10 Abb. Pr. 398; Langlois v. Buffalo, &c. R. R. Co., 19 Barb. 364; Abb. Dig. of Law of Corp. 643-646.
    
    
      
       See Murray v. N. Y. Central R.R. Co., vol. 3 of this series.
    
   By the Court.

James C. Smith, J.

The only question is, whether it was the duty of the defendants to keep the gate in repair. The plaintiffs claim, that the duty was imposed upon the defendants by the statute of 1850, known as the General Railroad act, and, if not thereby, then by section 8 of chapter 282 of Laws of 1854, amending the act of 1850.

Section 44 of the act of-1850 expressly imposes upon all railroad corporations to which it applies, the duty of erecting and maintaining fences on the sides of their road, with openings or gates or bars therein, for the use of the proprietors of the adjoining lands. But it is a question whether that section is applicable to the defendants, who were an existing corporation at the time of the passage of the act of 1850, they having been chartered by a special act in 1846. Section 49 of the act of 1850 subjects all railroad corporations within this State, existing at the time of the passage of said act, to all duties, liabilities and provisions contained in certain specified sections of said act, including section 44, not inconsistent with the provisions of their charter. The duty created by section 44 of the act of 1850, therefore, attaches to the defendants, unless it is inconsistent with some provision of their charter. The defendants • claim that it is inconsistent with the provisions of section 24 of their charter [quoted above].

The argument on the part of the defendants is, that this 'section subjects the land owners to the duty of erecting and maintaining gates, while the act of 1850 imposes such duty upon the railroad company; and thus the two provisions are inconsistent with each other, and, consequently, the latter does not apply to the defendants.

It is to be observed, however, that the act of 1846 does not impose upon the adjoining owner or occupant an absolute duty to erect and maintain gates. It permits him to erect them; and, in case he avails himself of the permission, it makes it incumbent on him to repair them. If he does not choose to erect a gate, he is under no obligation to do so, and, of course, is under no duty to repair. But the duty of the railroad corporation to erect and maintain fences on the sides of their road is absolute; and the adjoining land owners may insist upon its performance. If all the land owners on the line of the defendants’ road had seen fit to waive the permission to construct gates given to them by the statute, as they might have done, the defendants would have been bound, by the terms of their charter, to erect and maintain a fence on each side of their road throughout its entire length, except where it intersected public highways or was inaccessible to cattle. Practically, the case would then have been the same as if the charter had not given permission to the land owners to erect gates. What new duty was imposed upon the defendants by section 44 of the act of 1850 ? ' Simply, that the fences, which they were previously required to erect and keep up, should be constructed with gates or bars therein, when necessary to the land owners, instead of being immovable throughout. The new obligation is merely a modification of the former one—a specification of the mode, so to speak, in which the prior obligation is required to be performed. The fence required, whether with gates or without them, is but an ordinary erection for the purpose of restraining cattle from getting upon the track of the railroad; and a provision prescribing either mode of construction can hardly be regarded as inconsistent with a statute creating an obligation to erect the fence and maintain it.

We are referred to the cases of Visscher v. Hudson River R. R. Co., 15 Barb. 37, and Clarkson v. Same, 12 N. Y. 304, which hold that the provisions of the general railroad act, in respect to the mode of acquiring title to land for a roadway, are inconsistent with the provisions of the defendants’ charter upon the same subject, and, therefore, do not apply to the defendants. An examination of those decisions shows that they proceeded upon very substantial grounds, which do not exist in the present case. The defendants’ charter, as amended in 1848 (L. 1848, p. 39, c. 30), and the general act, prescribed essentially different and incongruous modes of proceeding to acquire title do land, each complete in itself. Under the charter, a notice to the party was to be served or published ten days; the general law required four weeks’ publication. The charter authorized proceedings in the superior court of the city of New York, or in the supreme court in any county of the State, for the appointment of five commissioners or appraisers, to be selected by the court, from the State at large. By the general law, the supreme court, in the district in which, the land was situated, had sole jurisdiction; each party nominated six commissioners, from whom the court selected two on each side, and appointed the fifth; and the commissioners were all required to live in the county in which the land was situated. Under the charter, the roadway might be of any width required; by the . general act it was limited to ninety feet. The charter provided that, on filing the report of the commissioners, the court, on proof of payment or deposit of the money, should make a rule reciting the proceedings, which, on being recorded, should operate as a deed to the company. Under the general law, notice was to be given of an application to confirm the report, an appeal was authorized, and twenty days were allowed for appealing. In reference to these discordant provisions, Justice Parker said, in Visscher’s case: “ The two modes of assessing damages and obtaining title are incompatible and incongruous. The requirements of the general act are not additional to those of the charter. They cannot be ingrafted upon the charter.” In Clarkson’s case, Dear, J., delivering the opinion of the court, said: “ For these sections to apply to the defendants’ manner of acquiring title, they must be consistent with the provisions of the defendants’ charter. That is, not that they must be identical, but that, although they may differ in requiring something in addition to what was to he done before, they must not, in their requisitions, take away any of the rights to which the defendants were entitled under the charter.” These extracts show the course of reasoning adopted in' those cases. Tested by it, the provisions of the general act upon the point now under discussion, are not inconsistent with the defendants’ charter. They do not deprive the company of any right; they impose no new duty; they simply regulate the performance of a duty which was imposed upon the defendants by their charter. If these views are correct, section 44 of the act of 1850 applies to the defendants, and makes it their duty to keep the gate in repair.

If it be assumed, however, that the section does not apply, let us see how the case stands under section 8 of the act of 1854 [quoted above].

The defendants are, undoubtedly, within the operation of this section, unless, as is claimed by them, it applies only to cases where fences and gates had not been constructed at the time that act was adopted. That claim is not warranted by the language of the section, and, in my judgment, does not accord with its meaning. In describing the corporations to which the section relates, its framers used the comprehensive words, “every railroad ,corporation;” and they specified, as well those corporations whose lines were then open for use, as those whose lines were not then open. In the case of Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. 42, 53, Demo, J, speaking of section 44 of the act of 1850, expressed the opinion that it “ is not to be regarded as merely a regulation respecting division fences, between the land of the railroad corporations and those- of adjoining property, but that it is rather to be considered as providing a safeguard for the protection of the lives of persons traveling by railroad, and of the property in animals, which citizens in the vicinity of those roads may own.” This remark of the learned judge is justly applicable, also, to the section we are called upon to construe; and the fact that the section was intended, in a great measure, as a police regulation for the safety of the traveling public, strengthens the conclusion that it was designed to have the general scope indicated by its language, qnd to prescribe a uniform rule for the government of every railroad company in the State. It provides for two distinct acts, the erect,ing of fences and gates, and the maintaining them; and although the former provision was unnecessary in cases where suitable fences and gates had already been built, yet the latter provision was useful in those cases, as well as where the fences and gates were thereafter to be constructed. Each provision is to be taken distributively, and to be applied to the cases in which it can have effect, reddendo singula singulis. Several other sections of the same act clearly apply to all the railroad corporations in the State, whether then existing or thereafter to be formed, and whether created by special charter or organized under the general law. §§ 7, 10,14,17.

Ho question can arise as to the power of the legislature thus to amend the defendants’ charter, as it contains an express reservation of the legislative power to alter or repeal it; and besides, section 22 of the charter subjects the corporation to the general restrictions and liabilities prescribed by title 3 of chapter 18 of part I. of the Revised Statutes, section 8 of which provides, that the charter of every corporation, that shall thereafter be granted by the legislature, shall be subject to alteration, suspension and repeal, in the discretion of the legislature.

I am of opinion that defendants were charged with the duty of keeping the gate in repair, and, therefore, the judgment should be reversed, and a new trial ordered. '

All the judges concurred,, except Davies, Oh. J., and. Leonard, J., who did not vote.

Judgment reversed, "and new trial ordered, costs to abide the event.  