The judge before whom this cause was tried has found that no fence has been built between the plaintiff’s land and the railroad, and that a crossing under the surface of the railroad of sufficient size to allow cattle and horses to pass freely to and from the creek to the west of the road, is necessary at the place where the railroad bed crosses the old faim road, and the testimony in the case fully sustains the finding.
It is also found as facts that the New York, Boston & Montreal Bailway Company obtained title to the lands described in the complaint for the purpose of constructing and operating a railroad thereon, and did partially construct the road ; that the company executed and delivered to the defendants and another a mortgage, whereby the land was conveyed to them as trustees for certain bond-holders; and that as trustees the defendants took possession of the land, completed the construction of the railroad, and have operated it since that time. This action is an equitaifie one, to compel the defendant to erect the fences and farm crossing, and the first question presented is, whether the defendants are within the law requiring railroad companies to erect and maintain fences and farm crossings; certain it is, they are not within the letter of the law, but the statute has an object beyond the mere regulations of division fences *233between adjoining land-owners, and was made in the interest of tbe public as well, to guard against the mischief which might result from the operation of a railroad without fences and cattle-guards, and the inconvenience arising from the want of proper and convenient crossings for farmers. The defendants are practically the owners and operators of this railroad, and are, therefore, within the spirit and intention of the statute, which must be held to include all operators of railroads, whether corporations or individuals. (Tracy v. Troy & Boston R. R. Co., 38 N. Y., 433.) We will hold, therefore, that the defendants are within the spirit of the law, and are bound by it. The principal complaint against the judgment has respect to the farm crossing. It seems to be thought dangerous to establish a precedent that a farmer is entitled to a farm crossing under the track of the railroad. In answer to this it may be said, in the first place, that there is no doubt about the right of the land-ovmer to maintain such an action as this. ( Wademan v. Albany & Susquehanna R. R. Co., 51 N. Y., 568.) That being so, it must be left to the court to determine the kind of crossing necessary and proper to be constructed, and the place where it shall be made; nay, more, it might bo said in favor of the plaintiff, that this is like a way from necessity, rendered so by the construction of the railroad, and the owner of the servient tenement may, in the first instance, locate the way. In the next place, it maybe said the farmer is entitled to such a crossing as, under all the circumstances, is the best; the rights and duties of both parties being fully considered; certainly there can be no objection to an uuder surface crossing as such. On the contrary, it is much to be regretted that all crossings of railroads, both public and private, are not either beneath or above the railroad track, and it is matter for grave consideration whether it is not the duty of the Legislature to make a law requiring all crossings to be either one or the other, and allow none to be made on the same grade. Such a law would prevent loss and accident, and save life on the one hand, and be an immense saving to the railroad companies on the other. We do not think, therefore, there is any danger in establishing a precedent for an underground crossing. The point is made that the party injured by the omission to make fences and farm crossings is confined to the action *234for damages, as prescribed by the statute; but we have already seen that, besides an action for damages, a land-owner may maintain an action to compel the railroad company to specifically perform the duty imposed by the statute. (Wademan v. Albany, etc., R. R. Co., 51 N. Y., 568.) This objection need not, therefore, be any further noticed.
Upon the whole, we think the judgment is right,'and must be affirmed, with costs.
Gilbert, J., concurred; BarNArd, P. J., not sitting.Judgment affirmed, with costs.