DCTT TO FEXCE LXJCBT TO CBOPS CAUSED BT CATTLE 8TEATT5C-
The duty of a railway company to provide under s. 254 of the Railway
Act, 1906. fences and cattle guards suitable and sufficient to prevent cat-
tle and other animals from getting on the railway, is prescribed only
to protect the adjoining landowners from loss caused by their animals
being killed or injured on the track; and, notwithstanding the general
language of s. 427 of the Act which gives a right of action to anyone
who suffers damages caused by the breach of any duty prescribed by
the Act. an adjoining owner whose crops are injured by cattle straying;
on to his land from the railway track, in consequence of the absence of
fences and cattle guards, has no right of action against the railway
company in respect of such injury. Richards. J.. dissented. [James v.
G.TJL/31 Can. S.CJL 420; GorVis v. Scott (18741, L.R. 9 Ex. 125,
and McKellar v. C.P.R. (19O4I. 14 Man. L.K. 614. followed: Winterbnrn
v. Edmonton Ry. Co. (19081. 8 W.L.R. 815. not followed.]
Hunt v. Grand Trunk Pacific Ry. Co.. 9 Can. Ry. Cas. 365. 18 Man. L.R.
ML
AGREEMENT PBOTECTIOX OF AH.WAY FBOU AXIMALS GATE LEFT OPEX
ESCAPE AXD DESTRrcnox OF AXLMAL.
A siding was constructed by the defendants from the main line of
their railway to the plaintiffs* mills, which stood in a two-acre enclosure
hounded on one side by the defendants* fence. At the point where the
siding entered the plaintiffs* land the defendants constructed and main-
tained a gate across the siding and connected with the fence on each side:
this gate was usually kept shut by the defendants* servants except when
taking cars to or from the mills, but it was not alleged that there was
any agreement that the defendants should keep it shut. The gate was
left open by the defendants' servants on one occasion after they had
removed a car from the siding, and the plaintiffs' horse, which was loose
in the two-acre yard, escaped through the gate and was run over bv a
train of the defendants on the permanent way. In an action to recover
damages for the loss of the horse, the jury found that the injury was
caused by the negligence of the defendants' servants in leaving the gate
394 FATAL ACCIDENTS ACT.
open. A clause in the agreement between the parties concerning the use
and maintenance of the siding provided that the plaintiffs should "pro-
tect the railway of the company from cattle and other animals escaping
thereupon from such portion of the siding as may be outside of the lands
of the company": Held, that this meant that the plaintiffs should keep
animals from escaping from that part of their land occupied by the siding
to the property of the company; the defendants owed no duty to the plain-
tiffs to keep their animals away from the line of railway; the placing of the
gate by the defendants, their custom of closing it, and the complaints of
the plaintiffs that it was sometimes left open, could not create such a
duty; and, therefore, there could be no negligence on the part of the de-
fendants. Per Riddell, J., that in the construction of the agreement it was
of no significance that the clause above quoted was in the printed form of
the defendants, a great part of the form having been struck out and much
matter written in; also, that the practice of importing implied terms into
a contract is a dangerous one; and there could be no implication here of a
condition that the plaintiffs would be relieved from the agreement if the de-
fendants left the gate open. [Judgment of the County Court of Middlesex
affirmed; Britton, J., dissenting.]
Woodburn Milling Co. v. Grand Trunk Ry. Co., 9 Can. Ry. Cas. 374,
19 O.L.R. 276.
UPKEEP OF FENCES ALONG RIGHT-OF-WAY ANIMALS KILLED WHILE WAN-
DERING ON TRACKS FENCES IN BAD STATE OF REPAIR.
Railway companies who do not maintain their fences and gates in the
condition provided by law, are at fault and liable for the loss of animals
who thereby gain access to the tracks and are killed.
Bouchard v. Quebec Ry. Light & Power Co., 14 Can. Ry. Cas. 241, 41
Que. S.C. 385.
BREACH OF STATUTORY DUTY LIABILITY.
A railway company which fails to maintain such fences and gates, as
are required by the Railway Act of Quebec, commits a breach of duty
and will as a result be presumed responsible for any damages caused to
animals escaping on to its right-of-way unless it can rebut absolutely the
statutory presumption that it is responsible for the killing of the animals
on the track. [Can. Pac. Ry. Co. v. Carruthers, 39 Can. S.C.R. 251, 7
Can. Ry. Cas. 23, and Rogers v. G.T.P. Ry. Co., 2 D.L.R. 683, specially
referred to.]
Rowe v. Quebec Central Ry., 14 Can. Ry. Cas. 245, 3 D.L.R. 175.
CATTLE GUARDS FAILURE TO PROVIDE.
In an action to recover the value of a horse claimed to have been
killed by an engine of the defendants' railway, the fact that the state-
ment of claim alleges an absence of cattle guards at the railway crossing
on plaintiff's land, does not preclude the plaintiff from relying on evidence
adduced at the trial as to a defective fence, where the statement of claim
does not specifically allege that the loss of the horse was due to the ab-
sence of cattle guards, but alleges in general terms that it was due to the
negligence of the defendants.
Stitt v. Can. Northern Ry. Co., 15 Can. Ry. Cas. 333, 23 Man. L.R. 43,
10 D.L.R. 544.
ANIMALS ON TRACKS ENGINEER'S DUTY.
Prima facie there is no duty on the engineer operating a railway train
who discovers stray animals in danger on the right-of-way over which he
FATAL ACCIDENTS ACT.
is pasaiag; to stop his traia for the paDrpree of driiiag saeh aaiaulf froai
the track so as to save them from iajary.
Sporle T. Graad Traak Pacific By. COL, 17 Caa. By. Cas. 71, 17 DJJB.
3*7.
See also BL, p. 387. aad DL, p. 398.
R27AIB OF FE2CCX&
As the railway law iauwi i the daty apoa railway compaaies of hup
iag m piupti upaii the feaces oa each side of the railway track, it fol-
lows that they are liablr ia dimigM for iajary to aa ?"' oa aceoaat
of oae of these feaces heiag left with aa aaproteeted opeaia* of samtieat
siae to eaahle aa aaiaral to pass throa*h- evrn whea sach opeaiap is at a
Bbtce where there is a ditch for draiaiae the hud oa each side of the rail-
Haot T. Qaehee R y, L Jt P. GIL, 2 Caa. Rr. Ca& 3S7. 21 Qoe. S.C 7.
CJUTH CETTLVfe OST TO HKHWAT A3* TUCK XfKUCESOB.
The pfauatiff a the ovwr of a aeH, boaaded oa oar side hy the ania
liae of the difiaJiate" nOar. aad oa the other side by a svfbeh thereof,
aad ahattJae; oa a iaghwy. which was awnnd by both" tradsw Owng to
a defect ia the feace betwcea the switch aad the" field, the afauatiffs cow
escaped from the aehl oa to the switch, which she crossed aad oiag over
the bad of a arnate owaer, which was aot feared off float the switch, aad
thea ihaig a laae ** wvat oa to the highway aad thea proceeded aloa* it
to the aaua liar, wheaee by reasoa of a defectivr cattle *nard ^he jeot oa
to the track aad was kiOed by a pa^sia^ traia: H*WL that the deJead-
aats were Kahk therefor. fGraad Traak ET. Co. T. Jaavs, 1 Caa. By.
Cas. 4*2, distia^ai^hed.]
Davidwv T. Gnad Traak By. Co, 2 Caa. By. Cas. 371. 5 O.L.K. 574-
ia Fewwai *. Caa. Piae. By. Co_ 7 O.LB. 294.]
The coarpaay aniataiaed ahanr its liar of railway a barbed wire
ary feace. withoat aay pale, board or other eappiajr coaaectia-: the posts;
ptaialiaV horse, picketed ia their arid adjoiaiag. beeaaae rr^hteaed from
MMae caasr aaexphuBed. aad raa iato the feace, receiTng ia jaries oa ae-
oaat of which it had to be kiDed: Held, that the feace was aot iaher-
eathr daageroas. aad therefore the eompaay was aot liable. The test is
whether the feace is daageroas to ordiaary stock aadcr ordiaarr coadi-
tioas, aad aot whether it is daageroas to a baltiag horse. JadgBMvt of
LUBT. Co. !_ reversed. Irriajr. J. duucatiap.
Phith aad BaDard T. Graad Forks Kettle River VaHey By. Co_ 3
Caa. By. Cas. 33L, 10 B.CJR. 299.
There was a deiectffc feace, which defeadaats had erected, aloa^ the
liae Utwiita their r^ht-of-way aad pbuatiirs bad. Owiap to its de-
fects the cow got oa to the rig*t-of -way aad was kffleal by oae of the aifiad
aats" traia& The trial Jadjge held that defeadaats were aain a daty to
iMiataia the feace aad gave jadgavat ia pbuatiflrs iaToar: field, af-
arauap jpdpaeat of the trial Goart, that aader & 199 of the Eaflway Act.
1903, there is a daty cast OB a railway naapaay to feaee where the ad-
joiaia^ hud is either (1) iaaiioied or |2 aettled aad eadoeed.
Dreger T. Caa. Xorthera By. Co, 5 Caa. By. Cas. 332, 15 Haa. UL 3SC
396 FATAL ACCIDENTS ACT.
[Not followed in Schellenberg v. Can. Pac. Ry. Co., 16 Man. L.R. 155;
referred to in McLeod v. Can. Northern Ry. Co., 9 Can. Ry. Cas. 39, 18
O.L.R. 016.]
ANIMALS KILLED ON TRACK KNOWLEDGE.
Four horses, the property of the plaintiff, escaped through an opening
on to a highway, thence through an opening on to a neighbour's land and
thence through an opening in defendants' fence to the track where they
were injured by one of defendants' trains: Held (affirm ing Richards, J.),
6 Can. Ry. Cas. 13, 3 W.L.R. 455, that under the Railway Act, 1903, ss.
199, 237, subs. 4, the defendants were liable.
Carruthers v. Can. Pac. Ry. Co., 6 Can. Ry. Cas. 15, 16 Man. L.R. 323.
[Affirmed in 39 Can. S.C.R. 251, 7 Can. Ry. Cas. 23; followed in Hid-
deson v. Can. Northern Ry. Co., 7 Can. Ry. Cas. 17 ; adhered to in Clay
ton v. Can. Northeni Ry. Co.. 17 Man. L.R. 431; referred to in Atkin v.
Can. Pac. Ry. Co., 18 Man. L.R. 019; Higgins v. Can. Pac. Ry. Co., 18
O.L.R. 12; McLeod v. Can. Northern Ry. Co., 9 Can. Ry. Cas. 39/18 O.L.R.
616; Coen v. New Westminster South. Ry. Co., 12 B.C.R. 424; McDaniel
v. Can. Pac. Ry. Co., 13 B.C.R. 53.]
ANIMALS AT LABGE TRESPASS FROM LANDS NOT BELONGING TO OWNER.
C.'s horses strayed from his enclosed pasture situated beside a high-
way which ran parallel to the company's railway, entered a neighbour's
iield adjacent thereto, passed thence upon the track through an opening in
the fence which had not been provided with a gate by the company, and
were killed by a train. There was no person in charge of the animals, nor
was there evidence that they got at large through any negligence or wilful
act attributable to C.: Held, affirming the judgment appealed from (16
Man. L.R. 323, 6 Can. Ry. Cas. 13 ) , that, under the provision of subs. 4,
of s. 237 of the Railway Act, 1903, the company was liable in damages for
the loss sustained notwithstanding that the animals had got upon the
track while at large in a place other than a highway intersected by the
railway.
Can. Pac. Ry. Co. v. Carruthers, 7 Can. Ry. Cas. 23, 39 Can. S.C.R. 251.
[Referred to in Rowe v. Quebec Central Ry. Co., 34 Can. Ry. Cas. 245,
3 D.L.R. 175; followed in Parks v. Can. Northern Ry. Co., 14 Can. Ry.
Cas. 247.]
DAMAGES TO TRESPASSING CATTLE.
A railway company is liable for damages for killing a cow which was
at large on the highway with the knowledge of the owner contrary to the
Railway Act, 1903, and which strayed from the highway to the land of D.,
and from there to the railway track through a defective fence which the
defendant company were obliged to maintain. The company are liable for
damage done to the land of an adjoining owner by cattle of a neighbour
tresjiassing by reason of a defective fence which it was the duty of the
company to maintain.
Lizotte v. Temiscouata Ry. Co., 6 Can. Ry. Cas. 41, 37 N.B.R. 397.
[Observed in Winterburn v. Edmonton, Y. & P. Ry. Co., 1 Alta. L.R.
97; referred to in McLeod v. Can. North Ry. Co., 9 Can. Ry. Cas. 39, 18
O.L.R. 616; relied on in Winterburn v. Edmonton, Y. & P. Ry. Co., 1 Alta.
L.R. 309.]
%
ANIMAL KILLED BY FALL FROM BRIDGE.
The plaintiff was the owner of a farm adjoining the defendants' railway.
The tenant of the plaintiff made an opening in the railway fence without
FATAL ACCIDENTS ACT. 3S7
the knowledge of the defendants through which a few hours after the plam-
tSFs horse escaped at to the railway, where it was killed by falling from
a bridge: Held, that the defendants were aot liable for the "act of a thinl
party (the tenant)) in making aa opening ia the feacr.
FlewelliBg T. Graad Trunk Ry. C o_ * Can. Ry. Cas. 47.
[Followed ia Atkins T. Caa." Fae. Ry. COL, 10 Can. fir. Ca*_ 204. IS
Man. L.R. 24 r 11 WJL.E. l.j
KILLED OX TtAlK - ESCATC TO HIGH WAT - QTTEV GATE - FEVCE
GATE XOT OF SCTFICIEXT HEIGHT.
The plaintiffs hordes escaped from his field by jumping oxer a fence of
msumnr-ai height aad going upon the highway. weat a short distance. got
OB to the track through aa opea sale leading to defendants* station ground,
where they were killed by a traia : HeW. that the company was act negli-
gent by fading to keep their sate Hosed through which the horses reached
the track, aad the aegligeace of the plaintiff in bavin* a fence of insnffi-
eJeat height was the came of the acndent.
Laporte T. Can. Xorthern Qaeber Ry. COL, 8 Can. Ry. Cas. 137.
[Reversed in 36 Qne. S.C. 179.]
CATTLE AT LABGE AXTMAL 53LLD> BT FALLTXG FBOM BADLWAT BUDGE.
A heifer, while being fed in the stable of an hotel adjacent to the de-
fendants* railway, escaped into the yard of the hotel and front thence on
to the defendants* railway through a defective fence. The animal was
pr$ed along the track by the man who had her in charge, tin she canw
to a bridge, and falling through, feil a distance of about 30 feet to the
ground beneath and was so severely injured that she had to be killed:
Held, that the defendants were not liable under the Railway Art. 190C,
a. 127 (2), the aainal not having been killed by the defendants* train.
[Young T. Erie 4 Huron Ry. Cow 27 O.R. 530. followed.]
lT-BLl-M T. Grand Trunk Ry. COL, 9 Can. Ry. Cas. 27.
SHEKT ESCAPECC TO JUUOIXIXG FJUUI OrcxrxG -rxm GATE AT FAKM ras-
ISG Oresr-CGS cc PESCK.
The plaintiffs $heep. without any negligence on his part, escaped from
his farm into that of the adjoining owner, through which the defendants*
railway ran, and thence baring got upon the railway track were kiDed.
There was a gate at a farm crossing on the adjoining owner's farm which
had been raised by the defendants at the request of such adjoining owner,
leaving an opening under the gate sufficient for the sheep to get through.
There were aho openings in the fence through which the sheep could have
got upon the track; but there wa* no finding of the jury as to the place
at which the sheep got upon the track: Held, that the" defendants were
Kahlr under s. 294 (4 of the Railway Act. 1906. even assuming that the
sheep got upon the track through the opening under the gate. The effect
of the words contained in the section, namely. ~at huge whether on the
highway or not.** is that the section is not limited to cattle being at huge
njthe highway and thence getting upon the railway premises.
v. Can. Pac. Ry. Co., 9 Caa. Ry. Cas. 34. 18 O.LR. 12.
GAF urr r* FEXCE AVIMAL* I-tjrrr TO WHKX ~AT LABGE" CO-CTKIB-
XBCLJGEXCE LAMJS ENCU>>ED.
The plaintiffs had leased a field, on which they pastured their
adjoining the track of the defendants* railway, from which it was sepa-
rated by a fence erected by the defendants, in which they had left a gap,
through which the horses strayed on to the track, where they were run
398 FATAL ACCIDENTS ACT.
down by a train and killed: Held, that the horses were not "at large"
within the meaning of s. 204 of the Railway Act, 1906, which was in
force at the date of the accident, and which docs not cover the case of
such owners as the plaintiffs, who were using their pasturing land adjoin-
ing the railway track in the usual manner for the purpose of keeping and
feeding their cattle, nor could such owners be considered as "suffering"
their animals to ''enter upon" the railway, and so losing their right of
action under s. 295 (e). (2) There is no express provision in the Rail-
way Act, ]906, equivalent to s. 16 of the Consolidated Railway Act of 1879,
as amended by 46 Viet. c. 24, s. 9 (D. ), under which it was decided in
Davis v. Can. Fac. Ry. Co., 12 A.R. (Out.) 724, that the question of con-
tributory negligence did not arise where the proximate cause of the dam-
age was the omission of the railway company to make or maintain fences
as required by the statute. (3) Notwithstanding the absence of an express
provision such as is above referred to, the defendants were liable to the
plaintiffs for the damages sustained by them, by reason of the duty im-
posed upon the defendants by s. 254 of the Railway Act, 1906, to "erect
and maintain upon the railway" fences "suitable and sufficient to pre-
vent . . . animals from getting on the railway," for breach of which
duty a statutory right of action against the company is given by subs.
2 of s. 427 of the Act, to any person injured, for the full amount of dam-
age sustained thereby. (4) Prima facie the fence was erected by the
company in accordance with their statutory obligation to do so where
the lands through which the railway passes are "enclosed and either set-
tled or improved" (s. 254, subs. 4) ; and the onus lay on the defendants to
shew that at the time when the fence was erected it was not ''required" by
the Act. Judgment of Clute, J., affirmed. [New Brunswick Ry. Co. v.
Armstrong (1883), 23 N.B.R. 193, approved and followed.]
McLeod v. Can. Northern Ry. Co., 9 Can. Ry. Cas. 39.
[Followed in Palo v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 1.]
ANIMALS KILLED ON TRACK DEFECTIVE SWING-GATE.
Action to recover damages for loss of horses killed by defendants' train,
where it crossed plaintiff's farm. Evidence was received as to plaintiff's
horses getting on defendants' tracks by reason of a defective gate which
it was the defendants' duty to maintain. The jury found in plaintiffs'
favour, and Boyd, C., entered judgment accordingly. Divisional Court
affirmed above judgment on the ground that defendants had not discharged
their statutory obligation to maintain the gate with proper hinges and
fastenings, as required by Railway Act, 1906, s. 254, and there being no
evidence of contributory negligence as provided for by s. 295.
Dolsen v. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 246.
D. Animals at Large.
STBAYING ANIMAL KILLED ON TRACK MUNICIPAL BY-LAW PROHIBITING ANI-
MALS RUNNING AT LARGE VALIDITY DEFECTIVE FENCES.
McDonnell v. Inverness Ry. & Coal Co., 4 E.L.R. 365 (N.S.).
DAMAGE TO TRESPASSING CATTLE.
Where the plaintiff allowed his cattle to run at large upon the highway,
and a calf got upon the railway track from land adjoining the plaintiff's
at a place where there was no fence along the track, it was held that the
calf got at large through the negligence or wilful act or omission of the
plaintiff, and therefore under s. 294, subs. 4, of the Railway Act, 190U,
he could not recover.
Dixon v. Can. Pac. Ry. Co., 39 N.B.R. 305.
FATAL ACCIDENTS ACT. 39ft
AXTJCALS KILLED OX TACK LlABILITT.
Where animals are run aver by an engine or train on a railway track,
the onus is on die railway company, under subs. 4 of & 294 of the Railway
Act, 1906. to shew that the animals got at large through the negligence
or wilful act or omission of the owner. [Parks T. Can. Northern Ry. Co..
15 WJ-R. 445. 13 W.LR. 118, followed.]
Foster v. Can. Pat Ry. Co, 19 W.LR. 623.
STBATEVC AXTMALS DCTT AS **?***** TBESFASSEXS HEEDIXG STOCK.
A railway company is not charged with any doty in respect of avoiding
injury to animal* wrongfully upon its line of railway until such time as
their presence is discovered. [1 WJLJL 356. 6 Terr. UK. 168, reversed.]
Can. Pae. Ry. Co. v. Eggle-ton. 36 Can. S.C.R. 641.
[Considered 'in McLean T. Rudd. 1 Ai.R. 50S; applied in Coen T. New
TTuniniinMii Southern Ry. Co.. 12 B.CJL 425.]
FOB BOSSES KILLED OX TBACK-
In an action for A-^^JJTI far the value of horses killed by a train, the
plaintiff need not plead negligence of the railway company under the Rail-
way Act. 1903. but the defendants may plead the general issue and may
give the Railwav Act and special statutes in evidence thereunder.
Rocheleau v. Grand Trunk Ry. Co.. 9 Qne. PJL 402.
AXIMALS OX TBACK WlLFTI. ACT OB OMISSIOX.
Action to recover damages for horses killed on defendants' track. Tt
was admitted that at the place where the animals reached the railway
the defendants were under no liability to fence, under subs. 4 of s. 254
of the Railway Act, 1906: and, in fact, they had not fenced. The plain-
tiff contended that he was entitled to recover under snbss. 4. 5 of s. 294:
Held, that the application of snbss. 4. 5 of s. 294 is not restricted to ease*
where the railway company are under a liability to fence; and that, under
ABM subsections, the railway company can escape liability only by shew-
ing that the animals got at large through the negligence or wilful act 01
omission of the owner. [History of the legislation and review of the
authorities.] And held, upon the evidence, that the MI. in the circum-
stances set oat below, were not at huge through the negligence or wilful
act or omission of the plaintiff.
Parks v. Can. Northern Ry. Co, 15 W.L.R. 445 (Man.).
TO STBATTXG AXTJf ALS.
Plaintiff left a number of horses in a pasture partially enclosed, being
fenced in two sides, bounded by a shallow creek on the third side and un-
enclosed on the fourth. He had been using this pasture for the purpose
of keeping his horses over night for some years, and up to the time in
question none had ever strayed out. On this owr~ion the horses beinjr
left for some days unattended to on account of a severe storm left the
pasture, there beinjr no evidence as to how they escaped, and strayed on
to the railway of defendants, where two of them were killed by a train.
and one so seriously injured that it had to be destroyed. In an action
for damages for the loss of the animals: Held, that the plaintiff did not
take reasonable precautions to safely keep the horses in question and pre-
vent them from getting; at huge, and could not therefore, under the pro-
visions of subs. 4 of s. 237 of the Railway Act, 1903, recover the value
of those killed, there being; no evidence of negligence on the part of the
defendants. (2) That subs. 4 of s. 237, which reads "when any cattle or
other animals at large upon the highway or otherwise, get upon the prop-
400 FATAL ACCIDENTS ACT.
erty of the company and are killed or injured by a train the owner . . ,
shall be entitled to recover" means any cattle or animals at large upon
the highway or upon other places than the highway.
Murray v. Can. Pac. Ry. Co., 1 S.L.R. 283.
NEGLECT TO FENCE ESCAPE OF ANIMALS FROM PRIVATE WAY TO TRACK ES-
CAPE FROM HIGHWAY.
Plaintiff's cattle, allowed to be at large by municipal by-law, strayed
upon a path or track (not being a highway within s. 271 of the Railway
Act, 1888), and thence from a farm lot, upon the unfenced railway track,
and were killed: Held, that the defendants were liable. Certain other
cattle of the plaintiff's also strayed and entered upon the track from a
highway crossing, and were killed: Held, that the defendants were not
liable. [Nixon v. Grand Trunk Ry. Co., 24 O.R. 124; Grand Trunk Ry.
Co. v. James, 1 Can. Ry. Cas. 422*, followed.]
Fensom v. Can. Pac. Ry. Co., 2 Can. Ry. Cas. 376, 2 O.W.R. 479.
[Varied in 7 O.L.R. 254; 3 Can. Ry. Cas. 231; 8 O.L.R. 688; 4 Can. Ry.
Cas. 76; followed in Carruthers v. Can. Pac. Ry. Co., 1C Man. L.R. 328.]
DUTY TO MAINTAIN CATTLE RUNNING AT LARGE CROWN LANDS POWERS
OF MUNICIPALITIES.
The Railway Act, 1888, as amended by 53 Viet. c. 28, s. 2, enacts that,
if in consequence of the omission of a railway company to erect and main-
tain a fence, "any animal gets upon the railway from an adjoining place
where under the circumstances it might properly be, then the company
shall be liable to the owner of every such animal for all damages in re-
spect of it caused by any of the company's trains or engines." The plain-
tiff's cattle running at large in a municipality, as by one of the by-laws
they were permitted to do, got upon Crown lands, and from the Crown
lands on to the railway, and were killed on the track by one of the defend-
ants' trains: Held, that by virtue of the by-laws permitting running at
large, the cattle were properly on the Crown lands, and hence the defend-
ants were liable under the above enactment. Per Meredith, J. (dissent-
ing) : Municipal bodies have no such control or power, either over private
property or Crown lands, as to enable them to give a right to the cattle
to be where they were when they strayed on to the railway track. Vary-
ing 2 Can. Ry. Cas. 376, 2 O.W.R. 479.