THESE were three several actions of trespass at the suit of the respective plaintiffs mentioned, against the Delaware Railroad Company, submitted on cases stated to the court and argued together by the counsel who were the same in each of the cases.
In the first case the facts stated and submitted were as follows: Vandegrift the plaintiff, was the owner of a farm in New Castle County through which the Delaware Railroad passes, and became seized thereof by descent on the death of his father, John Vandegrift, in whose life-time the railroad was located upon the land in question, and upon whose appeal taken to the finding of the commissioners appointed under the charter of the company to determine the damages, a writ of adquod damnum was executed and returned by the sheriff of the county, by which return in addition to the money assessed by the jury as damages, they also returned that the said railroad company should make and keep up the fences on both sides of the road passing through the said farm, with sufficient crossings, which said return was confirmed by the court. That a part of the fence on one side of the road passing through the said farm, had been erected by the defendant, the railroad company, but it had refused to put up fences on both sides of the road, or to pay the plaintiff therefor. The question of law arising upon this statement of facts and to be determined by the court, was whether the company was bound to make and keep up the fences on both sides of the road with its crossings on *Page 289 the plaintiff's said farm? If yea, the amount of the damages in the action to be ascertained by the prothonotary upon proof to be submitted to him of the expenses of making them by the plaintiff.
In the second case, Peter Cleaver, the plaintiff, was the tenant of a farm in said county owned by Jacob Vandegridt, through which the said railroad passes. Similar proceedings were had in this as in the preceding case with regard to the assessment of damages for the right of way, and in which a similar return was made to the writ of adquod damnum as to fences and necessary crossings and confimed by the court. The company, however, had only put up a part of the required fence on one side of the road on the said farm, and had refused to do any more. The cattle of the plaintiff, to wit, one ox and one heifer had escaped from some of the fields of the farm where they had been pasturing, and strayed upon the railroad for the want of the required fences to exclude them from it, and were run over and killed by a locomotive and train of cars belonging to the Philadelphia, Wilmington and Baltimore Railroad Company, running over the road of the defendants under their authority. The question of law submitted for the decision of the court in this case was, whether the defendants were liable in damages for the cattle of the plaintiff so killed as aforesaid. If the court should be of opinion that they were so liable, judgment to be rendered for the plaintiff for one hundred and ten dollars; otherwise for the defendant.
In the third case, Robert P. Haynes, the plaintiff, was the tenant of a farm in the said county, late the property of Wm. H. Crawford, deceased, and now owned by his heirs at law, under whom the plaintiff held the premises, upon which a portion of the Delaware Railroad had been located under a special written contract between the said Wm. H. Crawford and Andrew C. Gray, agent of the said railroad company, by which it was stipulated and agreed that the company was to pay to Crawford the sum of three thousand three hundred dollars in full compensation *Page 290 for the portion of the farm to be taken and occupied by the company for the purposes of the road, and supposed to contain nine acres, and in like proportion for whatever quantity it should be found to contain above that number of acres; said company to make and keep up good and substantial fences on said lands on both sides of the road, and which the said Crawford agreed to accept as full compensation for the use and occupation of the land as aforesaid. But the fences mentioned and referred to in the agreement were not put up by the company; and whilst the plaintiff was tenant of the premises as aforesaid, a young horse of his being in one of the pasture fields of the said farm adjacent to the said railroad, escaped upon it from the said field and was run over and killed by the cars of the Philadelphia, Wilmington and Baltimore Railroad Company running upon the said road of the defendants under a special agreement made between the said two railroad companies under the authority of an act of the General Assembly of this State. The question for the court in this case was, whether the defendants were responsible to the plaintiff in this action for the value of the horse so killed and destroyed? 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 proceed *Page 296 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 be dissatisfied with the damages assessed, he may at any time within thirty days after such assessment, sue out a writ of ad quod 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.
Now, 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 *Page 297 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 *Page 298 regarded by the law, as being there wrongfully, as trespassers; and they are not laible 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 C. 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 the 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, the old rule, on account of its practical inconvenience and injustice, has become greatly relaxed. Indeed, the exigencies and interests of the business commnuity 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 *Page 299 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 MaineR. 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 New 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 lands.
Let judgment, therefore, be entered in each of these cases for the defendants. *Page 300