By the Court, Pratt, J.
The main question to be determined in this cause, is, whether upon the facts admitted by the case, the defendants are liable for the value of the horses tilled. By no principle of law can they bo rendered liable on such a state of facts.
The defendants are the legal owners of the railroad, having acquired it by purchase, and grant from the State. Whether their charter contains powers and privileges which weréumprovidently granted by the Legislature, is not a question to be considered here in deciding the case; but whether under their chartered rights, and in view of the facts sub-netted, they are liable to the plaintiff for the loss he has sustained, resulting from their act, in running their locomotive and cars over their own railroad. Legally the defendants can be required to do no more in rendering the running of their cars safe to persons and property, than is required by the provisions of their charter, and the principles of the common law. By neither are they required to fence in then road for the protection of other person’s domestic animals, or for any other purpose whatever.
By the charter, the defendants are required, under heavy penalties, “to keep the road open and in repair for use, from Detroit to Lake Michigan, and always have and keep in use thereon, a sufficient supply of motive power and cars, both for persons and property, for the expeditious and convenient transaction of business, and the transportation of all persons and property offering for transportation.” (Sess. Laws 1846, p. 56, § 21.) Under these penal requirements, the defendants were engaged in running a passenger train of cars, at the time the injury complained of by the plaintiff occurred. The running of that train was a lawful act, and within their chartered rights; it was upon their own railroad, of which they had, by the express terms of their act [262]*262of incorporation, the entire and exclusive right of possession and control. Ho third person had any right to interfere, or to arrest the passage of the train, or, hy any means impede its progress. The act, then, of running the cars being lawful, tho defendants cannot be held liable for any accidental injury, which may have occurred, unless the lawful right of running the train was exercised without a proper degree of care and precaution, or in an unreasonable or unlawful manner. This is a principle of law well settled, neither new or anomalous. It is as old as-any other principle of the common law, and alike applicable to every other kind of lawful business.
From the facts admitted by the case, it appears that the cars were running at a usual time, and that it was a dark rainy night; hut it does not appear that the train was running at any greater speed than usual, or that the engineer conducting the train did not in fact exercise reasonable care and skill; nor can such an inference he legally drawn from the facts in the case. But it is insisted, on the part of the plaintiff, that in the township of Dearborn, horses were free commoners, and therefore righfully on the railroad. This position cannot be sustained. In legal contemplation, the railroad is neither a public common nor a public highway. The voters of the township of Dearborn could not, by any power vested in them by the Legislature, confer upon the plaintiff' the right of grazing his cattle and horses on the lands granted to the defendants, exclusively for the construction and use of their railroad. The provision of tho statute relied on, confers upon the inhabitants of townships merely tho right of determining the time and manner in which cattle, horses, and other animals shall he restrained from going at largo in tho public highways. (R. S., p. 84, § 4.) By no possible construction can this provision of the statute include railroads; nor can it he supposed that the Legislature intended to have them included as highways, or to authorize individuals, through the power thus vested in the townships, to trespass on vested private rights. Hor does tho act of 184V, which is also referred to and relied on, confer any such authority, or change the common law rule applicable to the case under consideration. This act provides merely, “that no person shall recover for damages done upon lands hy beasts, unless in cases where by the bylaws of the townships, such beasts are prohibited from running at large, [263]*263except where such lands are enclosed by a fence,” &c. (Sess. Laws of 1847, p. 181.) Thus far this act goes, but no farther, and itcannot be enlarged by implication or intendment. This suit is not brought under this act by the plaintiff to recover damage done on his lands by the defendants’ beasts; hence the act can have no legal bearing whatever on the case under consideration. This act does not require men to fence their lands, but merely precludes a recovery for damages done by beasts thereon, unless they are fenced. Nor does it grant any right to one individual to trespass on the private property of another, or to depasture at will railroads any more than other lands owned and possessed by individual citizens; nor can the Legislature, under the Constitution, confer any such right. But there is another view to be taken of this point made in the case, and which must be regarded as concluclusive. In the ease of the Tonawanda Railroad Company, vs. Munger, (5 Denio R., 255,) the Supreme Court in giving a construction to the provision of their statute, of which our act of 1847 is a substantial copy, say, “ that it is in its terms and spirit applicable to such lands only as are usually fenced, which cannot be done with the track of a railroad, and that no one ever supposed that such a strip of land, should be surrounded in its whole extent by a-fence, or that a fence could be maintained across the track at every intersection of a highway; that it would be entirely defeating the groat object fcr which railroads are allowed to be constructed.” This is undoubtedly a correct view of the subject; and the construction given to tlWr statute, is the only construction which can be given to our act of 1847, and protect the defendants in the enjoyment of their legal rights, and enable them to prosecute their business under their charter, without daily incurring the heavy penalties imposed upon thorn by the grant.
-If the plaintiff, under the acts referred to, had no affirmative right to graze his horses on the track of the railroad, it follows that they were there wrongfully; inasmuch as the common law gave him no such right. By way of illustration, suppose that the plaintiff’s horses had gone into another man’s wheat field, through a gate whieh had been left open by the owner, and killed themselves eating wheat: could the plaintiff have recovered of the. owner of the wheat, the value of the [264]*264horses under the provisions -of the act of 1847 ? Clearly he could not; the horses would have been in the field without right; hence wrongfully there. Nor could the owner of the wheat, having left his gate open, recover under that act the damage done by the horses. Wheat fields are usually enclosed by fence, and in such a case the act would apply, and legally bar a recovery. Brainard vs. Bush, (1 Cow. R., 78,) is a case in point. Bush made maple sugar in a piece of unenclosed woodland, and left some syrup in his sugar works in an unenclosed shed, to which Brainard’s cow came in the night and drank, which caused her death.
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By the Court, Pratt, J.
The main question to be determined in this cause, is, whether upon the facts admitted by the case, the defendants are liable for the value of the horses tilled. By no principle of law can they bo rendered liable on such a state of facts.
The defendants are the legal owners of the railroad, having acquired it by purchase, and grant from the State. Whether their charter contains powers and privileges which weréumprovidently granted by the Legislature, is not a question to be considered here in deciding the case; but whether under their chartered rights, and in view of the facts sub-netted, they are liable to the plaintiff for the loss he has sustained, resulting from their act, in running their locomotive and cars over their own railroad. Legally the defendants can be required to do no more in rendering the running of their cars safe to persons and property, than is required by the provisions of their charter, and the principles of the common law. By neither are they required to fence in then road for the protection of other person’s domestic animals, or for any other purpose whatever.
By the charter, the defendants are required, under heavy penalties, “to keep the road open and in repair for use, from Detroit to Lake Michigan, and always have and keep in use thereon, a sufficient supply of motive power and cars, both for persons and property, for the expeditious and convenient transaction of business, and the transportation of all persons and property offering for transportation.” (Sess. Laws 1846, p. 56, § 21.) Under these penal requirements, the defendants were engaged in running a passenger train of cars, at the time the injury complained of by the plaintiff occurred. The running of that train was a lawful act, and within their chartered rights; it was upon their own railroad, of which they had, by the express terms of their act [262]*262of incorporation, the entire and exclusive right of possession and control. Ho third person had any right to interfere, or to arrest the passage of the train, or, hy any means impede its progress. The act, then, of running the cars being lawful, tho defendants cannot be held liable for any accidental injury, which may have occurred, unless the lawful right of running the train was exercised without a proper degree of care and precaution, or in an unreasonable or unlawful manner. This is a principle of law well settled, neither new or anomalous. It is as old as-any other principle of the common law, and alike applicable to every other kind of lawful business.
From the facts admitted by the case, it appears that the cars were running at a usual time, and that it was a dark rainy night; hut it does not appear that the train was running at any greater speed than usual, or that the engineer conducting the train did not in fact exercise reasonable care and skill; nor can such an inference he legally drawn from the facts in the case. But it is insisted, on the part of the plaintiff, that in the township of Dearborn, horses were free commoners, and therefore righfully on the railroad. This position cannot be sustained. In legal contemplation, the railroad is neither a public common nor a public highway. The voters of the township of Dearborn could not, by any power vested in them by the Legislature, confer upon the plaintiff' the right of grazing his cattle and horses on the lands granted to the defendants, exclusively for the construction and use of their railroad. The provision of tho statute relied on, confers upon the inhabitants of townships merely tho right of determining the time and manner in which cattle, horses, and other animals shall he restrained from going at largo in tho public highways. (R. S., p. 84, § 4.) By no possible construction can this provision of the statute include railroads; nor can it he supposed that the Legislature intended to have them included as highways, or to authorize individuals, through the power thus vested in the townships, to trespass on vested private rights. Hor does tho act of 184V, which is also referred to and relied on, confer any such authority, or change the common law rule applicable to the case under consideration. This act provides merely, “that no person shall recover for damages done upon lands hy beasts, unless in cases where by the bylaws of the townships, such beasts are prohibited from running at large, [263]*263except where such lands are enclosed by a fence,” &c. (Sess. Laws of 1847, p. 181.) Thus far this act goes, but no farther, and itcannot be enlarged by implication or intendment. This suit is not brought under this act by the plaintiff to recover damage done on his lands by the defendants’ beasts; hence the act can have no legal bearing whatever on the case under consideration. This act does not require men to fence their lands, but merely precludes a recovery for damages done by beasts thereon, unless they are fenced. Nor does it grant any right to one individual to trespass on the private property of another, or to depasture at will railroads any more than other lands owned and possessed by individual citizens; nor can the Legislature, under the Constitution, confer any such right. But there is another view to be taken of this point made in the case, and which must be regarded as concluclusive. In the ease of the Tonawanda Railroad Company, vs. Munger, (5 Denio R., 255,) the Supreme Court in giving a construction to the provision of their statute, of which our act of 1847 is a substantial copy, say, “ that it is in its terms and spirit applicable to such lands only as are usually fenced, which cannot be done with the track of a railroad, and that no one ever supposed that such a strip of land, should be surrounded in its whole extent by a-fence, or that a fence could be maintained across the track at every intersection of a highway; that it would be entirely defeating the groat object fcr which railroads are allowed to be constructed.” This is undoubtedly a correct view of the subject; and the construction given to tlWr statute, is the only construction which can be given to our act of 1847, and protect the defendants in the enjoyment of their legal rights, and enable them to prosecute their business under their charter, without daily incurring the heavy penalties imposed upon thorn by the grant.
-If the plaintiff, under the acts referred to, had no affirmative right to graze his horses on the track of the railroad, it follows that they were there wrongfully; inasmuch as the common law gave him no such right. By way of illustration, suppose that the plaintiff’s horses had gone into another man’s wheat field, through a gate whieh had been left open by the owner, and killed themselves eating wheat: could the plaintiff have recovered of the. owner of the wheat, the value of the [264]*264horses under the provisions -of the act of 1847 ? Clearly he could not; the horses would have been in the field without right; hence wrongfully there. Nor could the owner of the wheat, having left his gate open, recover under that act the damage done by the horses. Wheat fields are usually enclosed by fence, and in such a case the act would apply, and legally bar a recovery. Brainard vs. Bush, (1 Cow. R., 78,) is a case in point. Bush made maple sugar in a piece of unenclosed woodland, and left some syrup in his sugar works in an unenclosed shed, to which Brainard’s cow came in the night and drank, which caused her death. Chief Justice Savage in delivering the opinion of the Court, says, “ although the defendant was guilty of negligence in leaving his syrup where cattle running at large might have access to it, yet the plaintiff having no right to permit his cattle to go there, has no right of action.” This decision goes no further than to carry out an elementary principle of the common law. Horses in the township of Dearborn being free commoners under some township rule or regulation, does not change the effect of this principle of common law, or the vested private rights of the defendants or other individual citizens. The idea that because horses and cattle are free commoners they have therefore the lajvful right of trespassing on jrrivate property is absurd — preposterous in the extreme. What are free commoners? Where may they run? In Holladay vs. Marsh, (3 Wend. R., 147,) the Supreme Court say: “ Suppose a case whero a town has no common land, and they i«ss a by-law permitting cattle and horses to run at large, where are they to run ? Surely not on individual property. Where then ? — in the highway ? The public have singly a right of passage over the highway The owner of the land through which the highway passes, is the owner of the soil and the timber, except what is necessary to make bridges, or otherwise aid in making the highway passable; and if the owner of the soil owns the timber, why not the'grass?” The doctrine established by this decision is in accordance with a fundamental principle of the common law, which has been recognized by elementary writers, and judicial decisions, in England and this country for a great length of time. “ Though every highway is said to be the King’s, yet the King has nothing except the right of passage for himself and his people; the freehold and all the profits, [265]*265as trees, &c,, belonging to the lord or owner of the soil, who may have .an action of trespass for digging up the ground of the highway.” (Cunningham’s Law Dictionary; also 3 Tomlin’s Law Dictionary, 788; 1 Burr, 143; 3 Bacon, 394.) Such has ever been the legal doctrine held in most, if not all of the States in the Union. (3 Kent's Com., 433; 3 John., 363; 8 Wend., 107; 12 Ib., 98; 20 Ib., 97; 6 Pet., 513; 10 Ib., 25; 6 Pick., 57; 6 Mass., 454; 16 Ib., 33; 5 Denio, 255; 4 Barbour S. C. R., 56.) The only decision found conflicting with this principle of law, which has been so long recognized and adhered to, is in Griffin vs. Martin (7 Barbour’s S. C. R., 297,) a case recently decided by the Supreme Court of the State of New York, at a term held in Saratoga, by Justices Paige, Willard and Hand; Justice Willard delivering the opinion, Justice Paige concurring- and Justice Hand dissenting; so that it was not the unanimous opinion of the Court, and it is to be hoped that it may bo overruled by the Court of Appeals, it being- neither sound in law, or just in principle.
But there is still another view to bo taken, and which is equally decisive of the case. It is a well settled principle of law, that where an injury, of which a plaintiff complains, has resulted from the fault or negligence of himself, or where it has resulted from the fault or negligence of both parties, without any intentional wrong on the part of the defendant, an action cannot be maintained. (8 John., 421; 1 Cow., 78; 19 Wend., 399, and the cases there cited; 21 Ib., 615; 5 Hill, 282, and the cases there died in note (a;) 6 Ib., 592; 5 Denio, 255; 4 Met., 49; 7 Ib., 274.) The plaintiff resided in the- vicinity of the railroad, and is not only presumed to have known the legal rights of the defendants touching their exclusive use of it, but the danger attending domestic animals that are permitted by their owner to be thereon; hence he was guilty of at least some degree of negligence, as well as a want of care and attention to the safety of his own property, in suffering his horses to stray away into a situation of extreme danger. But he was guilty of a culpable degree of negligence in permitting them, without care or pursuit, to stray away from his possession and be strolling wrongfully along on the track of the railroad, where trains of cars were almost .constantly running with great speed, day and night; and where they , might have been the cause of destroying not only the property, but the [266]*266lives of others, who were lawfully pursuing their legitimate business. The injury to individuals and the destruction of human life, which has from time to time occurred in this country, in consequence of domestic animals being wrongfully on the track of railroads, is appalling, and justly exciting much alarm in the public mind.
The defendants in running the cars, were pursuing merely their lawful and legitimate business, and were clearly within the powers and privileges granted by the express terms of their charter. If the injury complained of had occurred in consequence of any negligence or fault on the part of the defendants, or the engineer conducting the train,, without any negligence or fault on the part of the plaintiff; the defendants most unquestionably would have been liable for all the damages, sustained by the plaintiff; but such is not the case presented. This, suit is an action on the case, sounding in tort. The wrongful injury alleged, constitutes the foundation of the plaintiff’s right of action; and' yet the facts submitted for the purpose of sustaining it, show not the-least degree of negligence, or want of care or skill on the part of the-defendants, or the engineer conducting-the train; and the ground upon-which the action was brought, or upon which it was expected that it could be maintained, cannot be perceived, for the case submitted neither shows a malfeasance, a misfeasance, or « nonfeasance.
It often happens that no precaution, care or skill can prevent a locomotive at tho head of a train of cars, running with their accustomed speed, from coming in collision with some domestic animal wrongfully on the road, and which tho owner has negligently suffered to go at large unrestrained; the engineer conducting tho train not being able in consequence of some curve in the road, the darkness of the night, or some other unavoidable cause, to discover the animal in time to stop the locomotive, and thus prevent tho collision. Under such circumstances, the defendants could not be held liable by any known principle of law; and if they could be, it would be unreasonable and manifestly unjust. They are required under heavy penalties, to run the cars, and expeditiously transport persons and property, &c.; and shall they, by construction based,upon nothing better than mere hypothesis, be compelled to assume the guardianship of all the stray cattle, horses, and swine, usu[267]*267ally found strolling along on the track of their railroad ? Most certainly not. The owners are the only persons to look after them; and if they do not, it is but just'that they alone should suffer the consequences of their own negligence and wrongful act — of tieir own want of care, in the protection and preservation of .their own property.
The opinion of this Court is, that the plaintiff is not entitled to recover on the case submitted.
[269]*269GASES' ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF MICHIGAN. OCTOBER TERM, 1851. PRESENT I HON. O. W. WHIPPLE, Chief Justice. HON. WARNER WING, ') HON. SANFORD M. GREEN, [ Justices. HON. ABNER PRATT, )