Satterly v. Erie Railroad , 99 N.Y.S. 309 ( 1906 )

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.