Stoutimore v. Chicago, Milwaukee & St. Paul Railway Co.

Ellison, J.

This action is for double damages under section 809, Revised Statutes, 1879 ; the charge being that, by reason of defendant’s failure to fence its road, cattle got upon plaintiff’s fields and destroyed his growing crops. The judgment was for plaintiff and defendant appeals.

The only defense interposed was that plaintiff bad by deed granted to defendant a right of way through his lands, in which deed there appeared the following: “And William H. Stoutimore hereby covenants that he will forever warrant and defend the title to the premises hereby conveyed, against the lawful claims of all persons whomsoever, and he hereby releases all damages and claims thereto to all his other lands by reason of, or occasioned by, the location, construction and operation of a railway over and upon the premises hereby conveyed.”

We do not consider that the terms of this 'release meet the damages suffered by the plaintiff." The damages alleged here were not. “occasioned by the location, construction and operation of” the railway over plaintiff’s premises-.

Such damages were occasioned by the failure to build the fence required by statute. The occasion or primary cause of the damages, in the sense of the statute under which the suit is brought, was the failure to'erect cattle-guards and fences.

The judgment is affirmed.

All concur.