It appears that the defendants commenced, and partially completed, the first section of their railroad before the enactment of the St. of 1846, c. 271. They built the bridges and partly graded the track, but did not lay the rails. This section included the place where the plaintiff’s horse was injured; but it does not appear what its length was, nor by what right, in addition to obtaining a charter, they entered upon the land. They filed their location June 14, 1847, and do not appear to have obtained any other title from the owner. He had a right to have his damages assessed as of this date, and of course the expense of fencing would not be included in them. Stearns v. Old Colony & Fall River Railroad Co. 1 Allen, 493. Charlestown Branch Railroad Co. v. County Commissioners, 7 Met. 78. Baxter v. Boston & Worcester Railroad Co. 102 Mass. 383. The defendants would be obliged to fence the land according to the requirements of the statute.
The fact is not stated that the plaintiff’s horse was rightfully on the adjoining lot; but a jury might legally have found, from the circumstances stated, that he was there by license from the owners of the land; and as the case comes up by consent of parties in the form of a report, one of the terms of which is that if the plaintiff is entitled to recover, judgment is to be entered for him, we must treat as a fact whatever a jury would have been authorized by these circumstances to find. The horse thus being on the land rightfully, and having escaped upon the track for want of a fence which the defendants were bound to erect, this action can be maintained. Judgment for the plaintiff. '