Fairchild v. New Orleans & Northeastern Railroad

Citations

• 62 Miss. 177

Syllabus

<p>1. Railroad Company. Liability for throwing dawn fence on right of way.</p> <p>Where, prior to the passage of the act of March 13, 1884, making it the duty of railroad companies to put “stock-gaps and guards” wherever their roads intersect inclosure fences, a railroad company removed such a fence from its right of way, it did not incur the statutory penalty in favor of the owner of the inclosure, provided by § 989 of the Code of 1880, in case “ any person shall throw down any fence inclosing land not his own.” Vicksburg and Meridian Railroad Co. .v. Dixon, 61 Miss. 119, cited.</p> <p>2. Same. Removal of fence. Damage to crop. Pendency of condemnation proceedings.</p> <p>And if, by the removal of the fence in such case, cattle entered the inclosure and destroyed a crop planted after the institution by the railroad company of proceedings to condemn for its right of way a strip of land across such inclosure, the owner is precluded from recovering damages for the destruction of his crop, on the maxim volenti non fit injuria.</p> <p>3. Same. Damage from want of stock-guards. Action therefor. Evidence of promise to erect guards.</p> <p>A railroad company had a strip of land across P.’s field condemned for its right of way and paid the damages awarded therefor. While constructing its road the fence inclosing the field was taken from its right of way, and before the gap was closed and stock-guards put in cattle got into P.’s field and damaged his crop. He sued for the statutory penalty for throwing down his fence and for the damage to his crop. On the trial he offered to prove that while the condemnation proceeding was in progress and afterward, the defendant promised to erect stock-guards so as to protect his field; but no offer was made to show that the award of damages in that proceeding was at all affected by such promise. Meld, that the evidence offered was irrelevant and inadmissible.</p>