I dissent. The statutory duty imposed upon the •defendant to construct and maintain fences along the line of its road is in terms absolute. By construction, a qualification or exception is implied as respects localities where fences cannot be maintained without interfering with the public service to which these roads are devoted; but this implied exception extends no further than is re•quired by the considerations of necessity, upon which alone it rests. There was no reason shown in this case why the defendant might not have fenced that part of its line upon which the plaintiff’s land abutted. This was private property, and neither the public nor the railroad company could use it. A fence would not have interfered with the rights or the convenience of either the public or the railroad -company. The statute was therefore obligatory upon the defendant, ■ according to its terms; and, if the injury complained of resulted from the neglect of the defendant to comply with the statutory require-unent, the defendant was responsible.
The statutory obligation in respect to fencing involves, not alone -■a duty to the public travelling upon the railway, but as well a duty to the owner of the adjacent lands. One purpose of the statute was the protection of the owners of domestic animals along the line of the road. Shepard v. Buffalo, N. Y. & Erie R. Co., 35 N. Y. 641; Tracy v. Troy & Boston R. Co., 38 N Y. 433. This purpose in the statute, and this duty towards the adjacent proprietor, have been rec*106ognized, as I think, in the numerous decisions of this court holding-railroad corporations chargeable with negligence, as respects an adjacent proprietor, for its failure to fence, and maintaining the right of such persons to recover for injuries to, or the death of, their domestic animals, resulting from such neglect. And in Emmons v. Minn. & St. Louis Ry. Co., 35 Minn. 503, (29 N. W. Rep. 202,) damages-were deemed recoverable on account of the impairment of the usefulness of a farm for grazing purposes, by reason of the neglect of the defendant to maintain a fence; the court saying that the object of the statutory requirement (Gen. St. 1878, c. 34, § 57) was “to prevent, as far as possible, injury to them [adjacent lands] from maintaining and operating a railroad through or along-side of them.” If the railroad company owed this duty to the adjacent proprietor, — if, as respects him, the statute imposed the duty to fence, — it follows that it is answerable for injuries resulting from a disregard of that-duty and obligation.