Gilpin, Ch. J.,
announced the opinion of the court. These several cases came on for hearing at the last term of this court; and as they were argued together, I propose to deliver but a single opinion, disposing of all the questions presented in the argument which it is deemed material to decide. The principles enunciated, may, without difficulty, be applied to the facts of each particular case.
The second section of the supplement to the act incorporating the Delaware Railroad Company, of the 24th of February, 1853, after naming the commissioners to assess the damages of the owners of the lands, upon which the railroad may be located, and directing them to pro
ceed in all respects, as if they had been appointed under the fourteenth section of the charter, passed on the twenty-second of February, 1849, provides that if either party shall he dissatisfied with the damages assessed, he may at any time within thirty days after such assessment, sue out a writ of
ad quad damnum,
requiring the sheriff, in the usual form, to inquire by twelve impartial men of his bailiwick, of the damages aforesaid, and that their report shall be final.
The commissioners in one case, and the jury under the writ in the other, are to exercise the powers and perform the duties, devolved upon them respectively, under the provisions of the fourteenth section of the charter. These powers and duties are of specific and definite character. The jury are clothed with the same authority, which, in the first instance, is conferred on the commissioners, and no more; and the extent, or limit, of this authority, is to be ascertained from the terms of the fourteenth section.
Sow, what are they authorized and directed to do ? They are to assess the damages of the owners of lands upon which the railroad may be located; that is, they are to ascertain and determine the pecuniary compensation to which the owners are entitled, for the injury which they have sustained, by reason of the location and construction of the railroad through their lands. This is the extent of their authority.
The word damages, in this connection, is not of difficult interpretation; it has a well ascertained legal signification. It simply means a pecuniary compensation or recompense to the plaintiffs for injuries actually received by them from the defendants. The damages assessed should be commensurate with the injury sustained, and nothing more. And on ascertaining them, the jury might, in these cases, have included, if they had seen fit, the costs of the fences, as incidental to the taking of the land; but there is nothing in the charter authorizing them to make a contract between the parties, or to impose upon
the railroad company, any obligation whatever, in respect to the erection of fences, along the line of the road. We are therefore of the opinion, that in undertaking to do so, by incorporating in their return, a provision that the railroad company shall make and keep up all fencing on both sides of the road, they assumed to exercise powers not granted to them, and that this portion of their return is of no effect. .
The next question is, whether, under the general law, the defendants were bound to erect and maintain fences ? We think not. We know of no general statutory provision in this State, requiring railroad companies to fence their roads. We do not consider the fence law, as contained in chapter fifty-seven of the Revised Code, as at all applicable to railroads. And it seems to us, to be well settled by a series of well considered decisions, both in this Country and in England, that where there exists no statutory regulations defining the duties of railroad companies in respect to fencing, they are under no obligation to make or maintain fences, between their road and the - adjoining lands. They come within the common law rule; and at common law, the owner of land is not obliged to fence against the cattle of his neighbor. The owner of cattle is bound to keep them within his own lines, and if he suffers them to go at large, and they stray upon the premises of his neighbor, they are clearly trespassers, and he is liable for whatever damage they may commit; and as a general rule, he cannot recover for injuries received by them, while thus wrongfully on his neighbor’s premises. So too, in regard to railroad companies ; at common law, they are not bound to fence. Their obligations in this respect, are only co-extensive with statutory requirements ; and in the absence of such requirements, no liability, as a general rule, exists for injury to cattle while straying on the track. They have a right to the unobstructed enjoyment of the right of way; they have a right to run their cars over the road, without let or hinderance, and cattle, straying upon the road, are
regarded by the law, as being there wrongfully, as trespassers
;
and they are not liable for the destruction of cattle so being there, unless they are guilty of wilful negligence or misconduct. But in the cases now under consideration, no negligence, whatever, is alleged against the company.
The case of Robert P. Haynes differs materially from the other cases, in the fact that there was a contract on the part of the defendants to make and keep up good and substantial fences, on each side of the road. This contract purports to have been made on behalf of the defendants by Andrew 0. Gray, with William H. Crawford, the then owner of the land. It is in writing, but not under seal. And, a doubt has been suggested in the course of the argument, whether the agreement as set out in the case stated, is sufficient to bind the railroad company. The authority of Mr. Gray to act as the agent of the defendants, is not stated; but we think that the agreement being made by the parties, a part of the case stated, amounts to an implied recognition on the part of' the defendants of his authority to act as their agent. Assuming then that he was authorized to contract on their behalf, the question is presented as to the legal effect of the contract, as between tbe parties to this suit.
The ancient rule, at common law, in respect to corporations aggregate, unquestionably was, that they could contract only by deed, that is, under their corporate seal. But in this country, where corporations of this character have been created and multiplied by the legislatures of the several states, for almost every conceivable purpose, tbe old rule, on account of its practical inconvenience and injustice, has become greatly relaxed. Indeed, the exigencies and interests of the business community have been such as to require this to be done; and as a consequence, the current of modern decisions has been such as gradually to change the ancient rule, until at length, corporations are, in regard to the appointment of agents and the making of contracts, placed on the same footing with
individuals. So too, has the rule been relaxed in England, though perhaps, not to the same extent. The contract, therefore, we consider a binding contract, between the parties who made it. But the remedy must be had on the contract itself, for a breach of it, at the instance of the party with whom and for whose benefit it was made, or his personal representatives, and not by action of trespass at the suit of a stranger. It does not enure to the benefit of the plaintiff, Haynes, as tenant of the land.
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Gilpin, Ch. J.,
announced the opinion of the court. These several cases came on for hearing at the last term of this court; and as they were argued together, I propose to deliver but a single opinion, disposing of all the questions presented in the argument which it is deemed material to decide. The principles enunciated, may, without difficulty, be applied to the facts of each particular case.
The second section of the supplement to the act incorporating the Delaware Railroad Company, of the 24th of February, 1853, after naming the commissioners to assess the damages of the owners of the lands, upon which the railroad may be located, and directing them to pro
ceed in all respects, as if they had been appointed under the fourteenth section of the charter, passed on the twenty-second of February, 1849, provides that if either party shall he dissatisfied with the damages assessed, he may at any time within thirty days after such assessment, sue out a writ of
ad quad damnum,
requiring the sheriff, in the usual form, to inquire by twelve impartial men of his bailiwick, of the damages aforesaid, and that their report shall be final.
The commissioners in one case, and the jury under the writ in the other, are to exercise the powers and perform the duties, devolved upon them respectively, under the provisions of the fourteenth section of the charter. These powers and duties are of specific and definite character. The jury are clothed with the same authority, which, in the first instance, is conferred on the commissioners, and no more; and the extent, or limit, of this authority, is to be ascertained from the terms of the fourteenth section.
Sow, what are they authorized and directed to do ? They are to assess the damages of the owners of lands upon which the railroad may be located; that is, they are to ascertain and determine the pecuniary compensation to which the owners are entitled, for the injury which they have sustained, by reason of the location and construction of the railroad through their lands. This is the extent of their authority.
The word damages, in this connection, is not of difficult interpretation; it has a well ascertained legal signification. It simply means a pecuniary compensation or recompense to the plaintiffs for injuries actually received by them from the defendants. The damages assessed should be commensurate with the injury sustained, and nothing more. And on ascertaining them, the jury might, in these cases, have included, if they had seen fit, the costs of the fences, as incidental to the taking of the land; but there is nothing in the charter authorizing them to make a contract between the parties, or to impose upon
the railroad company, any obligation whatever, in respect to the erection of fences, along the line of the road. We are therefore of the opinion, that in undertaking to do so, by incorporating in their return, a provision that the railroad company shall make and keep up all fencing on both sides of the road, they assumed to exercise powers not granted to them, and that this portion of their return is of no effect. .
The next question is, whether, under the general law, the defendants were bound to erect and maintain fences ? We think not. We know of no general statutory provision in this State, requiring railroad companies to fence their roads. We do not consider the fence law, as contained in chapter fifty-seven of the Revised Code, as at all applicable to railroads. And it seems to us, to be well settled by a series of well considered decisions, both in this Country and in England, that where there exists no statutory regulations defining the duties of railroad companies in respect to fencing, they are under no obligation to make or maintain fences, between their road and the - adjoining lands. They come within the common law rule; and at common law, the owner of land is not obliged to fence against the cattle of his neighbor. The owner of cattle is bound to keep them within his own lines, and if he suffers them to go at large, and they stray upon the premises of his neighbor, they are clearly trespassers, and he is liable for whatever damage they may commit; and as a general rule, he cannot recover for injuries received by them, while thus wrongfully on his neighbor’s premises. So too, in regard to railroad companies ; at common law, they are not bound to fence. Their obligations in this respect, are only co-extensive with statutory requirements ; and in the absence of such requirements, no liability, as a general rule, exists for injury to cattle while straying on the track. They have a right to the unobstructed enjoyment of the right of way; they have a right to run their cars over the road, without let or hinderance, and cattle, straying upon the road, are
regarded by the law, as being there wrongfully, as trespassers
;
and they are not liable for the destruction of cattle so being there, unless they are guilty of wilful negligence or misconduct. But in the cases now under consideration, no negligence, whatever, is alleged against the company.
The case of Robert P. Haynes differs materially from the other cases, in the fact that there was a contract on the part of the defendants to make and keep up good and substantial fences, on each side of the road. This contract purports to have been made on behalf of the defendants by Andrew 0. Gray, with William H. Crawford, the then owner of the land. It is in writing, but not under seal. And, a doubt has been suggested in the course of the argument, whether the agreement as set out in the case stated, is sufficient to bind the railroad company. The authority of Mr. Gray to act as the agent of the defendants, is not stated; but we think that the agreement being made by the parties, a part of the case stated, amounts to an implied recognition on the part of' the defendants of his authority to act as their agent. Assuming then that he was authorized to contract on their behalf, the question is presented as to the legal effect of the contract, as between tbe parties to this suit.
The ancient rule, at common law, in respect to corporations aggregate, unquestionably was, that they could contract only by deed, that is, under their corporate seal. But in this country, where corporations of this character have been created and multiplied by the legislatures of the several states, for almost every conceivable purpose, tbe old rule, on account of its practical inconvenience and injustice, has become greatly relaxed. Indeed, the exigencies and interests of the business community have been such as to require this to be done; and as a consequence, the current of modern decisions has been such as gradually to change the ancient rule, until at length, corporations are, in regard to the appointment of agents and the making of contracts, placed on the same footing with
individuals. So too, has the rule been relaxed in England, though perhaps, not to the same extent. The contract, therefore, we consider a binding contract, between the parties who made it. But the remedy must be had on the contract itself, for a breach of it, at the instance of the party with whom and for whose benefit it was made, or his personal representatives, and not by action of trespass at the suit of a stranger. It does not enure to the benefit of the plaintiff, Haynes, as tenant of the land. To take any other view of the question, would be to treat the contract as a covenant running with the land, which it undoubtedly is not.
Morse v. The Boston and Maine R. R.
Company, 2
Cush.
536.
The plaintiff’s counsel seems to rely mainly, on the New York and Vermont cases of
Rensselaer and Saratoga R. R.,
4
Paige
553,
and Quimby v. Vermont Central R. R. Co.,
23
Vermont
387, as sustaining the doctrine he contends for. These cases, however, are in direct conflict with the settled rule of the common law, and with the general course of decisions in other states. The Hew York case does not appear to have been followed even in that state; in fact, it is in conflict with subsequent decisions there, as well as elsewhere.
The decision in the Vermont case, is, to say the least of it, anomalous in its character. It looks more like a case of judicial legislation, than the application of any recognized principle of the common law. As to statutory rules or requirements, there was none. But it does not seem to have settled the law even in Vermont; at least, there is a want of uniformity in their decisions on the question, as may be seen by reference to the subsequent case of
Hurd v. Rutl. and Burl. R. R. Co.,
25
Vermt.
123, in which it is laid down that where no statute exists, and no obligation is imposed by covenant or prescription, a railroad company is not bound to fence their lauds.
Let judgment, therefore, be entered in each of these cases for the defendants.