Martin Oh. J.:
The General Railroad Act, (Oomp. L. §1987) requires every corporation formed under 'it to “erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law,” and provides that “until such fences shall be duly made, the [418]*418corporation and their agents shall be liable for all damages which shall be done by their agents or engines to , cattle, horses or other animals thereon, and all other damages which may result from the neglect of said corporation to erect and maintain fences as aforesaid, and after such fences shall be erected and maintained, the corporation shall not be liable for any such damage, unless negligently or wilfully done.”
At the common law one owning land adjoining a public highway was under no obligation to erect and maintain exterior fences, nor was the public, or a company occupying such highway (as for example, a turnpike company), bound to construct fences along its sides. Hence if the cattle of the adjoining land owner strayed upon a highway, and were injured by one traveling upon it, the owner was without remedy, unless the injury was occasioned by wantonness or negligence. As respects private lands, the owner was liable for all damages committed by his cattle in trespassing upon those of another, nor could he recover damages for injuries to them while thus trespassing, unless wantonly and mischievously committed. The track of a railroad is the property of the corporation, and accordingly in Williams v. The Mich. Central R. R. Co. (2 Mich. 259) the same doctrines were held applicable to such roads; and the company, in that case, were held not to be liable for the destruction, by their engine, of cattle trespassing upon their road, as the company were uj)on their own lands, in pursuit of their lawful calling, and exercising due care in that pursuit. The owner was held to be in fault for allowing his cattle to stray from his lands, and was hence remediless.
Subsequent to this decision, the General Railroad Act, above referred to, was passed, and this introduced a new rule, and effected a radical change in the law so far as the rights, duties and liabilities of such companies are concerned. [419]*419These roads, although declared public, are in no sense highways. They are in reality, and from necessity must be, private in their use; and the nature and character of such use requires that they should be securely enclosed, for the ■protection of persons and property transported along them, and also for the protection of the property of residents in their vicinity. The duty of enclosing them is very properly imposed upon the railroad company, and the privileges and franchises they enjoy are a consideration for it. As the road is the private property of the company, and the public has no rights upon and along it at all analogous to those enjoyed upon a common road or highway, and as its exclusive use must be in the company, it is but just and reasonable that the whole burthen of enclosing and securing the road should be cast upon them, and that they should be subject to liability for all losses or injuries, however occurring, resulting from a neglect to fence it. Hence the act imposes upon such company the general duty of erecting and maintaining fences along the sides of their road, and makes them absolutely and unconditionally liable for all injuries, however occasioned, which may result, from their neglect of this duty; while for injuries occurring while sufficient fences exist, they are only made liable in case of Wilfulness or negligence.
In the case before us, the propriety of the law is not questioned by the plaintiff in error, and its necessity upon grounds of public security is admitted; but it is claimed that this duty ¡is not imposed until the road is operated. This view is based upon the idea that the public security Was the paramount consideration influencing the Legislature in making the law. But the statute having imposed this as a rgeneral duty, it was obligatory upon the company, as soon as they took possession of the road, and entered along Its line for the purpose of constructing it. It is construing the statute too narrowly, to hold that the duty and liability of the company only commenced with the operating of the [420]*420road, or that private rights and interests were not within the consideration of the Legislature in enacting it. The road became the property of the company from the time of the condemnation of the land, and the payment of the damages assessed therefor; or from that of the acquisition' of title by them by purchase; and they had thereafter a right to enter upon it for its construction. But if in so entering, they threw down the fences of an enclosure, it became their duty to erect side fences for the security and protection of the adjoining proprietor through whose land the road ran, or to take other precautionary steps to secure him from loss or injury. They have no right to insist that during the time occupied in the construction of the road, and until it is operated, the adjacent owner, whose fences have been prostrated, is bound to erect and maintain temporary fences along its line, or to set a guard, or employ any other means to prevent loss or injury to his property, or else to be deprived of the use of his lands thrown open by them. He is entitled to their use for the purpose of cultivation, or depasturing, at all times, up to the line of the road. This right was not embraced in the condemnation of his lands, and the assessment of damages, if the land was condemned; nor necessarily in its sale, if procured without condemnation ; and when they entered his enclosure the company were bound to respect it.
They could not presume, nor had they a right to require, that he would abandon the use of his lands thus thrown open; or to insist that he should use them at his own risk.
The neglect of the company, in the case before us, to erect fences renders them liable, therefore, for all damages resulting therefrom; and the fact that they were constantly 'throwing down and leaving down his fences did not put the defendant in error in the wrong in turning- his sheep into the enclosure. The first wrong being theirs, the statute makes them liable for all the consequences which ensue.— [421]*421See. Smith v. The Eastern Railroad, 35 N. H. 356; Hurd v. R. & B. R. R. 25 Vt. 116.
But while such is the duty and liability of the company, it is insisted that the plaintiff in error, being a contractor with •the company for grading the track, was not bound to construct fences along its line, and consequently can not be made liable for the loss of the defendant’s sheep. But the statute renders liable “ the corporation and their agents’'’ for all damages resulting from the neglect to erect and maintain fences. Under its provisions, an agent who, while in the employment of the company, commits or occasions any damage to the person or property of another, is liable for the injury, although it may be clearly shown to have occurred by'reason of the neglect of the company to fence their road, and not through his own wantonness or negligence ; and although an action would also lie against the company. And we think Gardner was an agent within the letter and spirit of the act. It was evidently intended to embrace, under the denomination of agent, every one in the employment of the company.
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Martin Oh. J.:
The General Railroad Act, (Oomp. L. §1987) requires every corporation formed under 'it to “erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law,” and provides that “until such fences shall be duly made, the [418]*418corporation and their agents shall be liable for all damages which shall be done by their agents or engines to , cattle, horses or other animals thereon, and all other damages which may result from the neglect of said corporation to erect and maintain fences as aforesaid, and after such fences shall be erected and maintained, the corporation shall not be liable for any such damage, unless negligently or wilfully done.”
At the common law one owning land adjoining a public highway was under no obligation to erect and maintain exterior fences, nor was the public, or a company occupying such highway (as for example, a turnpike company), bound to construct fences along its sides. Hence if the cattle of the adjoining land owner strayed upon a highway, and were injured by one traveling upon it, the owner was without remedy, unless the injury was occasioned by wantonness or negligence. As respects private lands, the owner was liable for all damages committed by his cattle in trespassing upon those of another, nor could he recover damages for injuries to them while thus trespassing, unless wantonly and mischievously committed. The track of a railroad is the property of the corporation, and accordingly in Williams v. The Mich. Central R. R. Co. (2 Mich. 259) the same doctrines were held applicable to such roads; and the company, in that case, were held not to be liable for the destruction, by their engine, of cattle trespassing upon their road, as the company were uj)on their own lands, in pursuit of their lawful calling, and exercising due care in that pursuit. The owner was held to be in fault for allowing his cattle to stray from his lands, and was hence remediless.
Subsequent to this decision, the General Railroad Act, above referred to, was passed, and this introduced a new rule, and effected a radical change in the law so far as the rights, duties and liabilities of such companies are concerned. [419]*419These roads, although declared public, are in no sense highways. They are in reality, and from necessity must be, private in their use; and the nature and character of such use requires that they should be securely enclosed, for the ■protection of persons and property transported along them, and also for the protection of the property of residents in their vicinity. The duty of enclosing them is very properly imposed upon the railroad company, and the privileges and franchises they enjoy are a consideration for it. As the road is the private property of the company, and the public has no rights upon and along it at all analogous to those enjoyed upon a common road or highway, and as its exclusive use must be in the company, it is but just and reasonable that the whole burthen of enclosing and securing the road should be cast upon them, and that they should be subject to liability for all losses or injuries, however occurring, resulting from a neglect to fence it. Hence the act imposes upon such company the general duty of erecting and maintaining fences along the sides of their road, and makes them absolutely and unconditionally liable for all injuries, however occasioned, which may result, from their neglect of this duty; while for injuries occurring while sufficient fences exist, they are only made liable in case of Wilfulness or negligence.
In the case before us, the propriety of the law is not questioned by the plaintiff in error, and its necessity upon grounds of public security is admitted; but it is claimed that this duty ¡is not imposed until the road is operated. This view is based upon the idea that the public security Was the paramount consideration influencing the Legislature in making the law. But the statute having imposed this as a rgeneral duty, it was obligatory upon the company, as soon as they took possession of the road, and entered along Its line for the purpose of constructing it. It is construing the statute too narrowly, to hold that the duty and liability of the company only commenced with the operating of the [420]*420road, or that private rights and interests were not within the consideration of the Legislature in enacting it. The road became the property of the company from the time of the condemnation of the land, and the payment of the damages assessed therefor; or from that of the acquisition' of title by them by purchase; and they had thereafter a right to enter upon it for its construction. But if in so entering, they threw down the fences of an enclosure, it became their duty to erect side fences for the security and protection of the adjoining proprietor through whose land the road ran, or to take other precautionary steps to secure him from loss or injury. They have no right to insist that during the time occupied in the construction of the road, and until it is operated, the adjacent owner, whose fences have been prostrated, is bound to erect and maintain temporary fences along its line, or to set a guard, or employ any other means to prevent loss or injury to his property, or else to be deprived of the use of his lands thrown open by them. He is entitled to their use for the purpose of cultivation, or depasturing, at all times, up to the line of the road. This right was not embraced in the condemnation of his lands, and the assessment of damages, if the land was condemned; nor necessarily in its sale, if procured without condemnation ; and when they entered his enclosure the company were bound to respect it.
They could not presume, nor had they a right to require, that he would abandon the use of his lands thus thrown open; or to insist that he should use them at his own risk.
The neglect of the company, in the case before us, to erect fences renders them liable, therefore, for all damages resulting therefrom; and the fact that they were constantly 'throwing down and leaving down his fences did not put the defendant in error in the wrong in turning- his sheep into the enclosure. The first wrong being theirs, the statute makes them liable for all the consequences which ensue.— [421]*421See. Smith v. The Eastern Railroad, 35 N. H. 356; Hurd v. R. & B. R. R. 25 Vt. 116.
But while such is the duty and liability of the company, it is insisted that the plaintiff in error, being a contractor with •the company for grading the track, was not bound to construct fences along its line, and consequently can not be made liable for the loss of the defendant’s sheep. But the statute renders liable “ the corporation and their agents’'’ for all damages resulting from the neglect to erect and maintain fences. Under its provisions, an agent who, while in the employment of the company, commits or occasions any damage to the person or property of another, is liable for the injury, although it may be clearly shown to have occurred by'reason of the neglect of the company to fence their road, and not through his own wantonness or negligence ; and although an action would also lie against the company. And we think Gardner was an agent within the letter and spirit of the act. It was evidently intended to embrace, under the denomination of agent, every one in the employment of the company. The word is to be taken in an enlarged sense, to include those who exercise the power of the company upon or over the road, as well as those acting as engineers, or in any other subordinate capacity,* and who may be active in, or connected with the commission of the injury. Thus in Clement v. Canfield (28 Vt. 303) a lessee of a railroad, in possession, was held to be an agent within the meaning of a like statute, and in The Chicago, St. Paul and Fond du Lac R. R. v. McCarthy, (20 Ill. R. 385) a contractor was held to be an agent under the statute of Illinois.
But not only was Gardner liable as an agent under the statute, but he was also primarily liable as a contractor posessing and exercising the power of the company over the' road for the purpose of its construction.
By assuming the control of this section of the road, he assumed the responsibilities which the law imposed upon [422]*422the company respecting its nse, and the liabilities which the law imposed for its improper use. In letting down Smith’s fence, he rendered himself liable for the consequences, to the same extent that the company would have been, had the act been done by their servants and laborers; for he, as contractor, has no greater rights, nor other exemptions from liability for his wrongful acts, than the company would have. Without taking the proper precautions, either by erecting temporary fences, or otherwise, he was, as to Smith, a tort feasor, not to the extent of liability for damages in entering upon the line of the road, it is true, but to that of liability for damages directly attributable to the neglect of those precautions.
As a contractor, in undertaking to do the work, he undertook to do it in a laAvful manner, and it was his duty thus to execute it. While he was not bound to erect and maintain a permanent fence along the sides of the road he was constructing, he was responsible for all damages sustained by Smith, from loss or injury to his sheep, or other property, to the same extent that the company are made liable by the statute. His power could not exceed theirs, and his liability was co-extensive with theirs. Although the company might, under the statute, have been made liable for the loss, he was also, both by the statute, and the common law. — See Moore & Sanborne, 2 Mich. 528; Sprague v. Smith, 29 Vt. 425.
Nor should any considerations of inconvenience or expense excuse the company, or the contractor, from this duty and liability. As between the corporation and Smith there is no inconvenience or expense which the former ought not more justly and equitably to bear than the latter. No appraisal of the probable loss of, or injury to, the cattle or other personal property of Smith, or of the expense of the construction of temporary fences, or the provision of other safe guards for their protection, was, or could be, made by a jury upon the condemnation of his lands; and in ease of [423]*423a voluntary ¿ alienation by him, the requirements of the statute will not|be presumed to have been waived. The contractor being in possession of the road, and possessing the rights and exercising the powers [of the company for the purposes of its construction, stood in their place, and was subject to the same liabilities which would have attached to them had they prosecuted the work directly by their servants and laborers ; and he could have, and musj; be presumed to have, provided in his contract for the necessary precautionary measures required for the safe prosecution of his work.
The judgment [of the circuit court must be affirmed.
The other Justices concurred.