ON PETITION POR REHEARING.
Gregory, J.The Toledo and Wabash Railroad Co. v. Fowler, 22 Ind. 316, to which our attention has been called in the petition for a rehearing,. seems to be against the conclusion arrived at by a majority of the court in the case at bar. Which is right? Mr. Chitty says that “facts only are to be stated, and not arguments or inferences or *204matters of law.” 1 Chitty on PI. 214,12th Am. Ed. Mr. Justice Buller, in The King v. The Mayor, &c., of Lyme Regis, 1 Douglass 149, says: “It is one of the first principles of pleading, that you have only occasion to state facts, which must be done for the purpose of informing the court, whose duty it.is to declare the law arising upon the facts, and to apprize the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.”
The act of March 4, 1863, 1 Gr. & H., § 7, p. 188, making railway companies liable for stock killed, without regard to the question of negligence, provides that “this act shall not apply to any railroad securely fenced in, and such fence properly maintained by such company, lessee, assignee, receiver, or other person running the same.” There is no negligence charged in the complaint, but it is sought to make the appellant liable solely on the ground that the railroad was not securely fenced in, and such fence properly maintained. The legislature have no power to impose the duty on a property-holder to improve his property in any particular mode, but in a police regulation they have a right to impose a penalty for the result of the omission of the railroad company to fence. Now, to ,say that “ the defendant’s road was not fenced as required by law,” is hardly stating even a legal conclusion, or a matter from which the court might infer that the defendant’s road was not “securely fenced in, and such fence properly maintained by such company.” The appellant was not required by law to fence, except, perhaps, under the general law for maintaining partition fences, as between adjoining land proprietors.
The averment tendered no issue of fact. The case in 22 Ind., supra, does not seem to have been much, considered, and a majority of the court hold that in this respect it is not good law.
The Indianapolis and Cincinnati Railroad Co. v. Adkins, 23 Ind. 340, is not in point. There the allegation was *205made that the road was “not securely fenced,’7 and that was not the question considered, hut the allegation as to. the pla.ce where the railroad was not thus fenced, was the matter in controversy.
J. Green, for appellant. N. II. Overman and G. W. Loioley, for appellee.The petition is overruled.