Plaintiff sued under section 4428, Revised Statutes, 1889, for the loss of his cow, which was killed by defendant’s cars within the limits of the town of Gasconade. He recovered below, and defendant brings the case here. The town was not incorporated, but was regularly platted with streets and alleys, which were dedicated to the public. The. streets, as laid out, crossed the railroad track, but it appears, the only one which was actually opened and in use across the track was several hundred yards from where the animal was killed.
Prom plaintiff’s first instruction it appears the view was taken that, in order to exculpate defendant from fencing, the town should have been incorporated. This was error. If the town be “regularly laid out into lots, blocks and streets, the streets crossing the railroad, which streets have been dedicated to public use as highways, it would be unlawful for the railroad company to fence up the streets in such a town ; and it would make no difference in such case whether the town so laid out into streets was incorporated or not. Greene v. Railroad, 60 Mo. 405.
But it is contended that with the exception of the one street, which was a considerable distance from where the animal was found, there were no streets in use or open across the defendant’s track. It has been repeatedly held by the appellate courts of this state that, where there is an unplatted and undedicated tract of ground, it could lawfully be fenced, notwithstanding it was within the limits of a city or town. But where it is platted and the streets dedicated, the railroad company cannot lawfully fence, although such streets are not in use or opened across the track. Elliott v. Railroad, 66 Mo. 683; Wymore v. Railroad, 79 Mo. 247; Ells v. Railroad, 48 Mo. 231. In the latter case it was said : “Ordinarily, a railroad track cannot run any considerable distance within a town without being *657crossed by some street actually opened or merely established. In that case the fencing cannot be required, for it would shut up a street actually in use, or one that had been laid out and dedicated and may soon be opened.”
The case of Lane v. Railroad, 18 Mo. App. 559, is not contrary td the foregoing, for there it is said the company may fence unless the streets are “already opened or dedicated to the public.” The instruction should have embodied such hypothetical state of case as was justified by the evidence. Indeed, if the facts as to dedicated streets are as defendant contends, then plaintiff cannot recover, under the foregoing authorities, without proof of negligence, notwithstanding the streets may not be actually opened or in use.
The judgment is reversed, and the cause is remanded.
All concur.