
    Jacob Guilfoos, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    1. Contract—Parol to build fence does not bun with the land.
    A parol promise, made by a railroad when acquiring a right of way, to build and maintain a board fence is not an agreement that runs with the land.
    2. Railroad—Negligence—Barbed wire fences.
    Prior to the passage of chap. 367, Laws of 1891, plaintiff’s horse was injured by coming in contact with a barbed wire fence which separated the field in which it was from defendant’s road. The action was brought for breach of contract to build aboard fence, but a recovery was sustained by the court below on the ground that the action could be maintained as one for negligence. There was no evidence as to the nature of the lot where the horse was, or whether it had been previously used as a pasture or that defendant knew of such use. Held, error; that a barbed wire fence along a railroad track is not necessarily dangerous and a nuisance; whether if is or not depends on the circumstances.
    Appeal from a judgment of the Cayuga county court, affirming a judgment of a justice court taken upon questions of law only.
    
      J. W. Dunwell, for app’lt; James Wright, for resp’t.
   Haight, J.

This action was brought to recover damages for injuries received by the plaintiff’s mare in a barbed wire fence. The plaintiff in his complaint alleges that he is the owner of a farm adjoining the defendant’s railroad, “ that along the lands of the plaintiff said defendant constructed and put up a barbed wire fence and has continued to maintain the same until the grievance hereinafter alleged. That such barbed wire fence was put up and maintained against the express wish and consent of plaintiff and contrary to a contract made by and between said West Shore Company and plaintiff at time of going through the lands of plaintiff. That' about January 1st plaintiff had a certain mare in a pasture lot adjoining said West Shore Bailroad and she became entangled in said barbed wire fence above described, and cut, maimed, mutilated, and otherwise injured herself to the extent of forty dollars, and for medicine used to heal her ten dollars, including doctoring. Wherefore, by reason of the premises, plaintiff demands judgment against said defendant for the sum of fifty dollars.”

Upon the trial evidence was given tending to show that at the time the West Shore contemplated building its road, a man came tliere to buy the right of way through the farm in question and said that he would pay $200 per acre for the land, and would build a board fence and dig a ditch two feet deep and four feet ■wide. The plaintiff was not at this time the owner of the land, but lie subsequently became the owner. We do not understand that a parol promise to maintain a fence is an agreement that runs witli the land. See Pierce on Bailroads, 424, and authorities there cited.

It consequently does not become necessary to consider the evidence for the purpose of determining whether it is sufficient to sustain the alleged agreement to build a board fence, or the exceptions that have been taken to the admission of evidence upon the trial in an attempt to establish such an agreement. The county court, in its review, was of the opinion that the action could be maintained as one for negligence, and we have examined the case for the purpose of determining whether such a cause of action was established. The complaint, as we have seen, fails to allege any act of negligence on the part of the defendant. The only allegation bearing upon the question is “ That the defendant constructed and put up a barbed wire fence and has continued to maintain the same until the grievance hereinafter alleged.” It does not allege that such fence was dangerous. Unless, therefore, the court can say that a barbed wire fence is dangerous and a nuisance per se, the action cannot be maintained on the ground of negligence. But assuming that the complaint is sufficient to authorize a recovery upon that ground, there is an absolute failure of evidence to establish negligence. The only evidence given upon the subject is by the plaintiff himself, and is as follows : “ The fence is a barbed wire fence on the south and north side of the West Shore railroad. The fence where the mare was hurt is on the north side of the railroad. There are six or- seven acres in the field and the barbed wire fence is along the railroad. It is the same fence that the West Shore Company put up and has been there until now. It has six wires on wooden posts, about half an inch long.” In another place he testified that with barbes about six inches apart and sharp, and barbes are he put his horse in the field in June, 1889, to pasture. The nature of the lot, whether wild or cultivated, pasture or meadow, does not appear. Whether it had ever been used as a pasture before, or the defendant knew of such use, does not appear. We are ° not even informed as to how the mare came to be injured.

We do not understand that a barbed wire fence along a railroad track is necessarily dangerous and a nuisance. It may or it may not be, depending upon circumstances. If the lands which it enclosed were wild and uncultivated, and not used for the pasturing of horses, it could hardly be claimed that its construction and maintenance was negligence, and yet other circumstances might be disclosed showing that such a fence was an improper one. Rehler v. Western New York & Pennsylvania R. R. Company, 28 St. Rep. 311.

Under the evidence as we find it, it does not appear.that such a cause of action was established. It is very evident that the case was not tried upon this theory. The claim litigated was for a breach of contract, and it is hardly fair to the appellant, upon review, to permit the respondent to shift his claim of damages from a breach of contract to one for negligence. The injury complained of occurred before the passage of chap. 367, Laws of 1891, and consequently the prohibition of barbed wire fences in that act has no application to this case.

The judgment of the county court and that of the justice of the peace should be reversed, with costs to the respondent in this and the county court.

Dwight, P. J., Lewis and Macomber, JJ., concur.  