Charles S. Satterly, Appellant, v. Erie Railroad Company, Respondent

Charles S. Satterly, Appellant, v. Erie Railroad Company, Respondent. Second Department, June 8, 1906. Negligence— real property — covenant to keep. fences bordering right of way of railroad in repair runs with the land—grantee cannot recover for injury to cattle due to failure to repair fences. A covenant by a landowner to build and maintain fences' bordering the right of way of a railroad runs with the land and i's binding: upon his grantee. Hence; when the cattle of the grantee stray upon the railroad and are injured by reason pf his failure to keep the fences in repair, he cannot recover damages for the loss. ’ '' Appeal, by the plaintiff,’ Charles. S. Satterly, from a. judgment of, the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 5th day of June, 190.3, upon the decision of the court, rendered alter a trial at the Orange Special Term, dismissing, the complaint upon the merits. , The action is to recover damages for the loss- of cattle which strayed from the -plaintiff’s, lands onto the railroad tracks of the defendant and were killed by its locomotive. The plaintiff complained that his loss was due to.the failure and neglect of the defendant to maintain fences .on the side pf its railroad between its •roadway’and the plaintiff’stands. In. addition to-its general denial the defendant pleaded .the contributory negligence and plaintiff’s carelessness and negligence in not keeping up and maintaining the fences, as he . was bound to- do by virtue of a written agreement theretofore entered into by his grantor. The court found that the defendant’s right of -way adjoins lands owned by the plaintiff, who acquired his title under Denniston, and. -that the defendant as owner of -such right of way acquired its title thereto by various deeds and conveyances from the said Denniston ; that by the terms- and conditions of the deed from Denniston to the defendant Denniston covenanted and agreed to build and maintain a good and substantial fence, along each side of said right of way, so as’to separate his other land from said right of way,-and at all times to keep said fence in good repair; that neither Denniston nor the plaintiff . did so;.’ that in consequence the cattle strayed into the defendant’s right of way and were killed, and that such killing was neither willful nor negligent. ■ And the court therefrom concluded that the plaintiff under and by virtue of the terms of the deed from Denriiston to the railrpad company was bound to maintain and to repair the fencethat defendant was not liable for the damages resulting from the injury and death of the cattle; that the plaintiff was not entitled to have or to maintain this action, and so gave judgment for the defendant dismissing the complaint upon the merits, with T* costs. Henry Kohl, for the appellant. Henry Bacon, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: I think that the covenant to build aid to maintain the fence ran with the land. (Moxley v. New Jersey & N. Y. R. Co., 21 N. Y. Supp. 347 ; affd., 143 N. Y. 649 ; 60 N. Y. St. Repr. 874 ; Bronson v. Coffin, 108 Mass. 175, citing inter alia, Blain v. Taylor, 19 Abb. Pr. 228, and Duffy v. N. Y. & Harlem R. R. Co., 2 Hilt. 496. See, too, Shepard v. Buffalo, New York & Erie R. R. Co., 35 N. Y. 642.) In Corwin v. New York & Erie R. R. Co. (13 N. Y. 42), Gregory, as owner, conveyed to the defendant the land on each side of its road for its railroad purposes, and covenanted in his deed to make and maintain fences. The plaintiff’s cattle passed into Gregory’s land and, as it was not fenced or guarded, onto the defendant’s tracks, and were killed. The court in its opinion says: “ It has been noticed that Gregory, who conveyed the land for the road through his farm, was bound, by his covenant with the defendant, to erect and maintain the fences. The plaintiff is a stranger to this covenant, and cannot be bound by it. Had Gregory’s cattle entered upon the road from his land, by reason of there being no fence, and been injured, his covenant-would have been a good answer to the action. It must be borne in mind that the statute imposes the duty generally upon the railroad company to erect and maintain" the fence; and the public and individuals have a right to hold the company responsible for the performance of this duty. If Gregory had erected and maintained the fence, this would have satisfied the statUte, as the railroad ¡company would have caused the erection, of the ' -fence; but' Until the fence was erected, the company remained. •liable for-'the omission.” This plaintiff is in the -same relation to 'the'-defendant as Gregory was to the defendant in Corwinis Case (supra).’ The appellant relies principally upon, Shepard v. Buffalo, New York & Erie R. R. Co. (supra). But in that case the . court expressly point out that there was nothing indhe deed- which required- the .grantor to "erect any fence. ■ I advise affirmance- of the judgment, with costs. ' . Present — Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ Judgment unanimously affirmed, with costs.