delivered the opinion of the court.
The demurrer to the original petition was properly sustained.
The petition showns that' the plaintiff had parted with the right of way for the railroad, and it must be assumed that he contemplated and assented to such use of the way as would render it practicable for the purposes for which it was intended. It does not appear, from any allegation in.the petition, that the railroad company used or appropriated the way to any purpose not contemplated by the parties, nor that the company, in using the way for the track, dug the ditch or trench deeper or wider than was necessary, or went outside of the width granted for the way; but the grievance of the complaint is, that no walls were erected by the company for the protection of the plaintiff’s property, and the failure to erect such walls is the negligence and carelessness complained of in the original petition.
Now, although it devolved upon the company, in the use of the way for the purpose contemplated, to observe proper care and precaution so as to avoid unnecessary injury to plaintiff’s property, and although a. failure to do this would furnish a just *222ground of complaint for injury resulting from such failure, we are of opinion that it did not devolve upon the company to construct a wall or erect any defenses for the protection of the adjoining property from the consequences resulting from a proper and reasonable use of the way for the railroad, although such consequences would be injurious, and inevitably so, to the plaintiff. It is for injury resulting to a man from the careless and negligent use by another of his property, that the law-affords redress to the former; the latter is not responsible for the reasonable úse of his own property, although such use may result in damage to his neighbor.
It is obvious, from the petition here, that the plaintiffknew to what use the way would be applied; the presumption is that he estimated the damage that wouldnecessarily result from the use of the way for the railroad track. The complaint is, not that it was not used for that purpose, or for a different one, but that the company failed to protect him by walls or otherwise, from the falling in of his adjoining land. If the plaintiff desired to be protected from the injury, which he himself says was the inevitable result of the use of the way, without walls to prevent the caving in of the adjoining land, he should have stipulated for the erection of such walls. He parted with the right of way without such stipulation and the company then acquired the right to use the way for the purpose designed. It was not their duty to protect the plaintiff against consequences resulting inevitably or necessarily from such use, and'such as might have been reasonably foreseen. All that the law required of them was to observe that care and precaution in the use of the way that would prevent unnecessary injury to the adjoining property. If the injury complained of was not the result of carelessness or negligence in the use of the way, but of the alleged failure to protect the plaintiff’s property from consequences inevitable from the proper use of the way for the object contemplated, such injury furnish*223ed no ground of action. (2 Rlals. Abr. 505; 12 Mass. 220; 17 Johnson, 92.)
2. A paper copied into the record sent to this court from the circuit court, though certified by the clerk to have been offered as an amendment to the pleadings, but not so certified in the bill of exceptions, cannot be treated by this court as a part of the record.The amendment which was offered to be filed and refused, has not been made a part of the record by a proper bill of exceptions, or any order of court directing it to be filed as a part of the order noting the exceptions, and cannot be considered in this appeal. The mere statement of the clerk that the paper copied was the amendment offered, without any reference thereto in the order rejecting it, or any other order recognising it as the paper offered and refused, or a bill of exceptions embodying it and making it a part of the record, is insufficient to bring it before the court as a constituent part of the case for revision. The paper copied, however, does not, in our opinion, cure the defects in the original petition. It alledges, it is true, a failure to slope the walls of the ditch, and states that as an act of negligence, but makes the injury complained of the result, not of the failure to make the necessary slope alone, but of that and the failure to erect the walls. And, as we have seen, the failure to erect the walls for the protection of the plaintiff, without which, as the plaintiff shows, the injury would not have ensued, V'as not an act of negligence or carelessness for which the company would be responsible.
Judgment affirmed.