We have not been able to discover, that any material fact, essential to the plaintiff’s cause of action or right of recovery, has been omitted in the declaration. It states the plaintiff’s ownership of his cow, where she was, and her value, with precision; that the defendants were in possession of a certain railroad locomotive, under the care and government of their servant, and that said servant so carelessly and unskillfully managed it, as to run it against said cow, on a day named, and kill her, by means of which she was lost to the plaintiff. We do not see what more need be said, to make the plaintiff’s loss, or the cause of it, any clearer. It was said, that it ought to have appeared, that it was done upon the defendants’ railroad track. But we see no reason for this. A locomotive may be carelessly managed, in any place, and when an injury is caused by it, it would seem, the managers of it ought to be liable. Besides, the second count does state that the cow, at the time she was killed, was upon a crossing of the track of the road of the defendants, which crossing was necessary to the plaintiff, in the use and occupation of his land, and over which he was accustomed to drive his cows and other animals. We think, therefore, the declaration is well enough, and the motion in arrest must be overruled.
The ruling of the county court, in respect to the plaintiff’s right of way across the railroad, is said to be incorrect. The railroad, by passing through the plaintiff’s farm, divided it into two parts, and it did not appear, that there was any *109highway, or other ordinary passway, that enabled him to get from one part to the other, without crossing the railroad. Under these circumstances, the court charged the jury, that the plaintiff had a right to pass from one side of his farm to the other, across the railroad, by implication of law.
We think this charge correct, under the circumstances. Any other rule would deprive parties of the entire use of lands, situated like a portion of the plaintiff’s farm. The legislature, in authorizing the defendants to construct their railroad, never intended thus to destroy the right of proprietors to enjoy their lands, especially without providing for compensation for lands thus injured. If the plaintiff had, by deed, conveyed a strip of land, running through his farm, so that he could not get from one portion to the other, without crossing the strip thus conveyed, the law would give him a way, of necessity, and we should be very reluctant to hold, that, by taking the land under their charter, they acquire any greater right to it than an absolute deed would give them. We do not, however, rest the case on this ground. We know, indeed, that expressions can be found, in some modern American cases, that seem to countenance the idea, that railroad corporations acquire a full and complete title to land, taken for their use. But expressions of this sort are not much to be regarded, when made in cases where the question arises, between the railroad corporation and some party who was obviously trespassing upon their rights, without any color or claim of right. No such principle has ever been decided, to our knowledge, in any case, where the question arose between the company and the former owner of the soil; and if it has been, we can only say, that such is not our opinion. :-'The principle conflicts directly with the principle that prevails in the analogous case of land taken for the use of an ordinary highway, and we know of no reason that should give a railroad corporation, a full and complete title to the land taken by them, that would not apply, with the same force, to land taken for an ordinary turnpike road. *110If it be said, that the railroad company must have a more exclusive use of the land, than is necessary .for a turnpike company, it is so, undoubtedly; and this circumstance may affect the value of the property, to the. owner of the soil, but does not touch the question of the title to the soil. As against third persons, courts have treated railroad corporations as the owners of the lands, because, from the nature of their business, it is necessary, that they should be so far in the exclusive possession as to exclude all others, whose joint possession would be inconsistent with the free use of the railroad, in the manner in which it is accustomed to be operated ; and this, undoubtedly, is all that is meant, when lands are spoken of, as the property of the railroad corporation. Owners of the soil would have no right to pasture their cattle upon the railroad, because such a right would endanger the public, who travel upon it, and is, therefore, inconsistent with the use to which it is appropriated. But the right to cross a railroad is not inconsistent with such use. Such a right exists in the whole public, wherever an ordinary highway crosses a railroad. It exists in individuals, wherever there is a private passway across one, and we think it also exists, as the county court charged the jury, in this case, that it did, wherever a proprietor’s land is so divided that he can not pass from one portion of it to the other, without crossing a railroad, t If the plaintiff had a right to pass from one portion of his farm to the other, with his cows, across the railroad, he was not, necessarily, trespassing upon the rights of the company, at the timé his cow was killed. That would depend upon whether he was in the reasonable exercise of his right of passing. Now, that question was very fairly submitted to the jury,—certainly in a manner of which the company can not complain.
It maybe, that the jury did not find the fact, as we should have done, but that is no ground of error. As a question of fact,' merely, there was, undoubtedly, evidence tending to show, that the plaintiff’s cow was not in the exercise of the *111right of passage across the railroad, but was loitering along upon the track, and that the plaintiff was guilty of negligence, in suffering her to do so. But all this was submitted to the jury, and they found a verdict for the plaintiff. This, whatever we may think of it, as a matter of fact, we have nothing to do with, on the question of whether there was any error in the charge. As we have not been able to find this, the judgment must stand.
The court charged the jury, that the plaintiff .could not justify the presence of his cow on the railroad track, by any right to depasture there; and, if the defendants below, had requested it, would undoubtedly have charged them, that he had no right to suffer her to loiter, or stray upon, or to stand upon the track. Indeed, such, in substance, was the charge, when the jury were told, that the plaintiff’s right of crossing must be exercised reasonably, and that the right to cross might be laid out of the case, if it was unreasonably exercised, at the time. But, in requesting the court to charge the jury, that the plaintiff had no right to permit his cow to stray, or stand upon the track, in the manner stated by the testimony of the plaintiff, they attempted to withdraw the question of fact from the jury, and to induce the court to draw the inference, from the plaintiff’s testimony, which, it appears to us, could only be drawn by a jury. While, therefore, we see ground to suppose, that the jury may have judged incorrectly, we are not satisfied, that they were misled by the court. We do not find any error in the judgment complained of.
In this opinion Storrs and Ellsworth, Js., concurred.