*393The opinion of the court was delivered by
Redfiemo, J.1. The court have not deemed it necessary to go into the inquiry, in this case, whether, upon the facts stated in the bill of exceptions, the defendants’ right to the land, where the injury occurred, had so vested, that they might rightfully occupy the same. The very action pre-supposes, that the company were rightfully occupying the land ; else the action must be trespass, and not case.
2. In regard to the obligation to fence the land, we think the rule adopted by the court below was as favorable, as the defendants could ask. That is treating them as owners in fee of adjoining lands. This is the view taken of the subject by the New York courts. In the rail road charters in that state it is provided, that the company may take the fee of the land. The charter of the defendants’ company, although copied, in the main, from the New York charters, adopts different language, as to the defendants’ title, —only saying, that they shall be “ seized and possesssed of the landthat is, seized of such an estate as is necessary for their uses, — a right of way. This form of expression seems to have been adopted by design, and with a view to limit the estate of the company strictly to their necessities. Indeed, we do not well see, how the legislature could assume to vest in the company any greater estate, than their necessities required.
This being so, then the general laws of the state, as to adjoining land owners, would not apply, and the defendants’ charter being silent in regard to the obligation to fence, it becomes a question of reason and justice, growing out of the relations of the parties. And in this view it would seem, that no two persons could give different answers to the inquiry. The company have taken a strip through the land. Shall the proprietor have only the value of the estate taken from him, without regard to the form in which it is taken, the form in which it leaves the remainder, and the risks of losses and the necessity of fencing 1 An affirmative answer to such an inquiry would be not a little startling to the moral sense! The truth is, the expense of fencing rests primarily upon the company, — whether as a part of the land damages, or as a necessary precaution to running their engines, with safety, as is said by the Chancellor of New York in The matter of the Rensselaer & Saratoga R. R. Co., 4 Paige *394553, is immaterial. And whether the whole expense of fencing is to be assessed in the land damages, as was done in this case, or half, as was held in the last case cited, or none at all, on the ground, that, from the necessity of the case, the obligation to fence must rest upon the company, is not necessary now to inquire. It is sufficient to say, that, until the company had either built the fence, or paid the land owner for doing it, a sufficient length of time to enable him to do it, we do not think, that the mere fact, that cattle get upon the road from the lots adjoining, is any ground of imputing negligence to the owners of the cattle.
3. We think, then, there being no testimony in the case tending to show want of ordinary care on the part of the plaintiff, in regard to the horses injured, the court properly refused to charge upon that point.
4. The charge in other respects seems to have been altogether unobjectionable, and the illustration not objectionable, so far as the defendants are concerned. If the jury had given a verdict for the defendants, it might have been more questionable. That illustration is one, which has often occurred to me, as applicable to the ordinary-cases of injuries to property, through alleged want of care, and in most cases just. It is but requiring one to do by others, as he would in the same circumstances do by himself, or wish others to do by him. It is but a paraphasis upon the exposition of Jones in his treatise on Bailments, where he defines common diligence to be that degree of diligence, which common men exercise in their own affairs. But we do not think the illustration entirely applicable to the present subject, — for the reason stated at the bar, that the company might, as matter of expediency, choose to endanger the life of their own beast, rather than check their train. But if they did that to another’s property, they should make good all loss to the owner and to all others injured by such rashness. But this is matter, of which the plaintiff, only, has reason to complain.
5. We do not think, it was incumbent upon the plaintiff, in opening his case, to show, that by the laws of rail road companies, the defendants were guilty of want of ordinary care. If he saw fit to trust that question to the good sense and judgment of the jury, he might. It is not one of those mere scientific subjects, whose laws, *395like that of botany and geology, or medicine, or surgery, are matters of settled principle and accurate knowledge. If the defendants desired the benefit of the rules of engineering for their exculpation, they might show the custom; and if not unreasonable, of which the jury must judge, it would avail them.
There being no error in the case, the judgment is affirmed.