The opinion of the court was delivered by
Peck, J.This case was argued at the last term of this court upon general demurrer to the declaration, and held for consideration.
One of the grievances complained of in the first two counts is that the plaintiff’s cattle were killed upon a certain railroad known as the Vermont and Canada Railroad, by an engine or locomotive which the defendants were running upon said railroad, by reason of the want of cattle guards and fences where Ihe road crossed the plaintiff’s farm and at the plaintiff’s farm crossings on his land. The existence and necessity of such farm crossings are sufficiently alleged. The neglect of the defendants to fence their road through the plaintiff’s farm, as well as their neglect to construct cattle guards at'the plaintiff’s farm crossings, and the killing of the plaintiff’s cattle by an engine in the use of the defendants on the railroad in consequence of such neglect, are sufficiently averred.
It is not claimed by the defendants’ counsel but that the two first counts would be sufficient if the action were against a railroad corporation. But it is insisted that there is not sufficient alleged to entitle the plaintiff to recover against these defendants. It is claimed that the facts alleged do not show a duty resting on these defendants to make or maintain fences or cattle guards.
The statute provides that, “ each railroad corporation shall erect and maintain fences on the sides of their roads, so far as the same shall be necessary, of the height and strength of a division fence as required by law, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad, and also construct and maintain cattle guards at all farm and road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon if occasioned by want of such fences and cattle guards.” It is not alleged that the defendants are a railroad corporation or *400agents of such corporation, so that they do not come within the words of the statute. It is not alleged that the Vermont and Canada Railroad was constructed or owned by a corporation. Railroad corporations have the power given them to take lands for their road against the will of the proprietor, and are by the statute charged with the duty of maintaining division fences, and also cattle guards at necessary farm crossings; but it does not follow that the same duty would rest exclusively on an individual who might by contract construct a railroad for his own use through another’s land. It would depend on their contract, at least so far as the proprietor of the land is concerned. There is no allegation in the declaration to show that this railroad is not of this character. But if the court could take judicial notice that the Vermont and Canada railroad was constructed by a railroad corporation, it is not alleged that the defendants are the agents of that corporation, or in what character or capacity they are using the road. It is not necessary to decide what the character or extent of the agency must be to come within the term agent used in the statute, because it is not alleged that the defendants are agents of any railroad corporation. But we do not consider it necessary to bring the defendants within the letter of the statute to charge them with this duty. If it were alleged that they were trustees, .mortgagees, or lessees, in exclusive possession, use and occupancy of the road, holding it from and under a railroad corporation, it probably would be sufficient. ' In such case they would stand in the place of the corporation, exercising its rights, and consequently burdened with its duties. The declaration contains no such averment. It is true it is alleged that the defendants were in the possession, use and occupation, of the railroad; and is again alleged that they were engaged in using, running and operating the railroad for the transportation of freight and passengers by steam power thereon with divers engines, cars and machinery. But that is not sufficient to bring them within the statute. It is alleged also that by reason of so occupying, possessing and using said railroad through the plaintiff’s farm, the defendant’s were bound to make and maintain fences and cattle guards ; but this is not an allegation of a fact, it is simply an attempt to draw a legal conclusion from what is previously alleged. It is not sufficient to charge such duty upon a *401private individual, not imposed by law, nor resulting from facts previously alleged. It differs from the case of a duty imposed upon a public corporation by general law. In an action against a town for an injury occasioned by a defect in a highway, it would be sufficient to allege the existence of the highway in the town, and that it was the duty of the town to keep it in repair; because the duty to keep in repair all highways in existence in the limits of the town is imposed by a general law ; but in an action against an individual for mot keeping a road or way in repair, it would be necessary also to allege the ground of such liability. So far, therefore, as these two counts are based on the neglect of the defendants to maintain fences and cattle guards, they are insufficient. This conclusion disposes also of the third count, which is based entirely on the neglect to maintain fences and cattle guards.
But it is alleged in the first and second counts that the defendants by their servants, so carelessly, negligently and improperly drove, ran and used their locomotive in and along the railroad, that by and through the carelessness, negligence and improper conduct of the defendants by their servants in that behalf, the locomotive ran against and killed the plaintiff’s cattle. This shows a good cause of action at common law. The plaintiff is therefore entitled to recover for whatever damage was done to his cattle by any carelessness or negligence of the defendants or their servants in the manner of running their locomotive on the occasion in question, which comes fairly within the scope of this allegation.
Judgment of the county court reversed and judgment that the first and second counts of the declaration are sufficient, and that the third count is insufficient, and case remanded to the county court.