The only question to be considered is one of fact, or perhaps more accurately speaking, it is a mixed question of law and fact as to whether the proposed bridge is a necessary farm crossing within the meaning of the statute, which provides that railroad corporations shall construct farm crossings when and where the same may be necessary for the use of-the proprietors of the adjoining lands. This statute also provides that when the railroad corporation refuses to make such' necessary crossings the owner of the lands may, after giving proper notice to the corporation, build the same, and recover twice the value thereof from the corporation, with interest at the rate of one per cent, per month from the time the same was built, with costs, in any court of competent jurisdiction. K. S., Oh. 114, §§ 48-51-52.
The building and operations of a railroad across a tract of land may, and necessarily does, damage the owner in respect to the land actually taken as well as in respect to that not taken. The latter element is often more considerable than the former, and of course must vary according to the circumstances of the case.
Before the corporation can appropriate the property, these damages must be ascertained and paid in the manner proposed by law.
Perhaps the most important feature of damage to land not taken is the inconvenience and danger of operating a farm where it is divided by the railroad, as shown in the present ease. Here, as appears by the bill and answer, the right of way was duly condemned and the value of the land taken estimated at $260, while the damages to the land not taken were estimated at $1,300, the latter item being five times that of the former.
notwithstanding this allowance, which, w'e are to presume, was ample, as it has been so adjudged in the mode provided by law, it is still incumbent upon the railroad corporation to build and maintain farm crossings for the use of the land owner when and where the same may become necessary. It is shown that the corporation did build seven crossings within a distance of less than half a mile, and that, in addition to these, there are two crossings over the public highway, which pass along the north and west sides of the land. Two of these seven crossings are under grade, thus furnishing the safest possible way for the passage of stock from one part of the farm to the other.
It is, however, insisted that the company must build a bridge between the dwelling house and the barn, and by the decree of the circuit court the height of this bridge was fixed at 19£ feet, involving an approach 13 feet high on either side, and sloping clear across and beyond the right of way, the estimated cost of which will be about one thousand dollars.
By this decree the appellee is allowed to erect this structure, charging the company twice the value thereof with interest, and the cost of maintaining it must, in the same way, be borne by the company. This seems to be a very heavy burden, and, unless clearly within the purview of the statute, must be regarded as unreasonably oppressive and not in keeping with the equitable character of relief administered by a court o.f chancery. As the statute has furnished no measure or standard by which it can be ascertained when the crossings contemplated are necessary, courts must regard even- case upon its own facts, having due care to protect the rights of both parties; and in the first place, as the inconvenience of operating a farm thus divided is proper to be considered in fixing the damage to the land not taken (C. & I. R. R. Co. v. Hopkins, 90 Ill. 316), and presumably has been allowed and paid for, it is not enough to show that the crossing contended for would add somewhat to the convenience of the land owner.
Perhaps this might be true yet no necessity exist. Again the safety of the traveling public and the safety and convenience of the corporation in the operation of its trains and in the care and use of its right of way should be regarded. And finally the relative rights of both parties should be kept in view so as to furnish reasonable safety and security to each without the imposition of an unreasonable burden or duty upon either, considering all the special circumstances of the case. The proposed bridge will not materially shorten the distance between the dwelling and the barn. Prom the diagram contained in the record it is apparent that so far as the mere distance between these two points is concerned crossing Ho. é answers the purpose well enough.
It is objected that this is unsafe because on the north side the cut is six feet deep at the track and that there is great danger in crossing from the north to the south. It appears from the evidence, however, that approaching this crossing from the north a train can be seen east 1,500 feet, more than a quarter of a mile, and west two miles; approaching from the south one can see west two miles and east three miles. If this be so, and the evidence is not contradicted, then in the exercise of ordinary care the crossing can be passed with safety.
The law does not intend, for it would be unreasonable, that the crossing should be so arranged as to preclude all possible danger and relieve persons about to pass over from the exercise of any additional care by reason of the presence of a railway track over which it is the right and duty of the company to move its trains for the accommodation of the public as well as for its own profit. Every one must take heed, observe the situation and use due care for his own safety, the degree of care to be dependent upon the necessity and to be measured by the peculiar conditions of things.
It is not to be expected that one, when about to cross a railroad, should be absolved from this duty of caring for his own welfare, and the law never intended this when it provided that the corporation should make these crossings, when and where necessary. Suppose the proposed bridge were built, with the extensive approach that would be necessary to reach it, it can hardly be supposed that a prudent person would undertake to cross it with a spirited or even a gentle team when a train was passing below, and therefore the practical use of the bridge would be limited to such times as trains were not passing, this to-be ascertained by an observation for the purpose. And it is not necessary to remark that with such a degree of caution, the use'-of crossing No. 4 might be considered perfectly safe. On the other hand should be considered the effect of the bridge and its approaches in shutting off the view, and thereby increasing the hazard of operating this part of the road, thus involving extra danger to the property of the corporation as well as to the lives of the employes and those who ride upon its trains. We do not care to pursue the matter further, as we think it must be apparent that when the merits of the whole case, and the relative rights of both parties and the public are duly considered, the demand for this elevated crossing is unwarranted and unreasonable.
It is hardly necessary to say, that for all other purposes of communication, from one part of the farm to the other, the other crossings referred to arc ample and sufficient. It is possible that subsequent experience may show it -would be rather more convenient to have some of them located a little differently, but this is not a substantial matter of complaint. The land owner having received a fair and just compensation for the damages sustained by reason of the location of the road, must make some effort to accommodate himself to the present situation and he will doubtless find that the peril and inconvenience are less than he had expected. The law must be practical in its operation, and can not undertake to do more than provide substantial amends for every loss or injury sustained, leaving the party affected to use his good judgment and common sense in obviating such annoyance as may result from these insignificant or exceptional circumstances which can not he foreseen or provided against by any system of jurisprudence that has ever been devised.
It follows that we are unable to approve the decree of the circuit court, and we therefore reverse the same with directions to make the injunction perpetual as prayed in the bill.
Reversed and remanded.