RELATING TO POOR LAW, CRIMINAL LAW, LICENSING, RATING,
AND OTHER SUBJECTS CONNECTED WITH

THE DUTIES AND OFFICE OF MAGISTRATES,

DECIDED IN

THE HOUSE OF LORDS, THE COURT OF APPEAL,
THE QUEEN'S BENCH DIVISION, THE CHANCERY DIVISION,
THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION,
AND THE COURT FOR CROWN CASES RESERVED.

STEVENS AND SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON;
SWEET AND MAXWELL, LIMITED, 3 CHANCERY LANE, LONDON.

Law Publishers and Booksellers.

1897:

CASES RELATING TO

POOR LAW, CRIMINAL LAW, LICENSING, RATING, AND OTHER SUBJECTS

DIXON v. GREAT WESTERN RAILWAY, App. line was opened in 1857. At the place where the accident happened the line was constructed upon a viaduct five feet from the ground, and supported by buttresses, and was for a considerable time after the railway was constructed left without any fence on either side of it. In 1883 an accident happened to a horse that was grazing on the adjoining land, owing to its having got under the viaduct; and Colonel Baskerville, the then owner of the property, thereupon made a fence separating the railway from his land. The company objected to this fence as being an encroachment upon their land, and in the same year constructed a fence themselves.

In September, 1895, the plaintiff, the tenant of the adjoining land, had two colts grazing on the land. It appeared that they got through the fence into the railway ground under the viaduct, and that one of them was seriously injured and had to be destroyed.

At the trial the jury found that the fence was in a dangerous and rotten condition, that the colt was injured in consequence, and that the viaduct was dangerous and a nuisance without a proper fence.

Upon these findings the Lord Chief Justice, on further consideration, directed judgment to be entered for the plaintiff.

The defendants appealed.

Bucknill, Q.C., and Alfred Lyttelton, for the defendants.-Under section 68 of the Railways Clauses Act, 1845,' the railway company were bound to provide certain

shall have been paid compensation instead of the making them."

Section 69: "If any difference arise respecting the kind or number of any such accommodation works, or the dimensions or sufficiency thereof, or respecting the maintaining thereof, the same shall be determined by two Justices; and such Justices shall also appoint the time within which such works shall be commenced and executed by the company."

Section 73: The company shall not be compelled to make any further or additional accommodation works for the use of owners and occupiers of land adjoining the railway after the expiration of the prescribed period, or, if no period be prescribed, after five years from the completion of the works, and the opening of the railway for public use."

2

Rail

accommodation works, amongst which were
included sufficient fences and rails for pre-
venting the cattle of the owners and oc-
cupiers of adjoining lands from straying.
If the company did not perform the obliga-
tion imposed by section 68, an adjoining
owner or occupier could go before Justices
under section 69, and compel the company
to do their duty; but under section 73 the
company could not be compelled to provide
such works after five years from the com-
pletion of the railway. Any fences put
up by the company within the five years
would have to be properly maintained. If
an adjoining owner has acquiesced in the
non-erection of accommodation works he
cannot, after the lapse of five years, claim
that they should be provided; the statute
does not provide any machinery for making
such works after the statutory period has
elapsed-Colley v. London and North-
Western Railway [1880] and Bryan
v. Great Southern and Western
way [1892].3 There must be some
limit of time within which owners
may compel the railway company to do
what is required by section 68. That
section merely imposes on a railway com-
pany the prescriptive obligation of owners
to fence. Apart from prescription or
agreement, owners are not bound to fence.
The defendants here have never induced
the adjoining owners to think that they
would maintain the fence for ever. The
liability can only arise either at common
law or by statute. There is no liability
here at common law. A man may erect a
fence on his own land to prevent his cattle
from straying, and may remove that fence
whenever he chooses, for he is under no
obligation to maintain it so far as his
neighbours are concerned Hilton v.
Ankesson [1872], Blithe v. Topham [1607],5
Ponting v. Noakes [1894], Bird v. Hol-
brook [1828], Deane v. Clayton [1817],8
Jordin v. Crump [1841], and Hounsell v.
Smyth [1860].10

(2) 49 L. J. Ex. 575; 5 Ex. D. 277.
(3) 32 L. R. Ir. 15.

(4) 27 L. T. 519.

(5) 1 Rol. Abr. 88; Cro. Jac. 158.
(6) 63 L. J. Q.B. 549; [1894]2 Q.B. 281.
(7) 6 L. J. C.P. 146; 4 Bing. 628, 640.
(8) 7 Taunt. 489.

(9) 11 L. J. Ex. 74; 8 M. & W. 782.
(10) 29 L. J. C.P. 203.

DIXON v. GREAT WESTERN RAILWAY, App. Montague Lush (with him W. Seton), for the plaintiff. Section 68 of the Act of 1845 imposes two duties on a railway company-first, to make sufficient fences; and secondly, to keep them in repair. No limitation in point of time for the performance of these duties is imposed by section 68. The owners may request a railway company to set up fences at once, but where no such request is made the company may do so at a convenient time. Then the proviso to the section enacts that where the owners and occupiers have been paid compensation instead of the making of accommodation works, the company shall not be required to make any such works. Where compensation in lieu of all accommodation works was paid to an owner by a railway company who fenced the land subsequently, it was held that they were liable for the loss of the occupier's cow through their neglect in not keeping the fence in repair, upon the ground that the payment of compensation did not exonerate them from their liability under section 68 to maintain the fence for the benefit of the occupier-Corry v. Great Western Railway [1881]." Section 73 follows a group of sections dealing with accommodation works which have in fact been made, and it provides that if the parties have not availed themselves of the machinery provided for going before Justices they cannot do so after five years from the completion of the railway. The words "further or additional" accommodation works in section 73 apply only to cases like Colley v. London and NorthWestern Railway 2 and Bryan v. Great Southern and Western Railway,3 where accommodation works had been made, but the owners had not objected to their insufficiency within the time limited by the section. Here the defendants have not, within the five years, pretended to perform the duty imposed upon them by section 68. The moment the fence was put up by the defendants it became an accommodation work, and they are bound under section 68 to keep it in repair.

Bucknill, Q.C., in reply, referred to Manchester, Sheffield, and Lincolnshire Railway v. Wallis [1854].12

(11) 50 L. J. Q.B. 386; 7 Q.B. D. 322. (12) 23 L. J. C.P. 85; 14 C.B. 243.

LORD ESHER, M.R., having stated the facts, and that the removal by the defendants of the fence erected by Colonel Baskerville did not really affect the case, which had to be considered as if that fence had never been erected, proceeded: All that it is necessary to decide in this case is, what was the obligation of the defendants? Treating them not as mere landowners, with common-law rights, but as a railway company under the control and under the enactments of the statute, the first section to be dealt with is section 68. That section imposes a statutory obligation upon the railway company to make and thereafter to maintain-no limitation of time whatever within which they are so to maintain being there stated-sufficient fences for separating land taken for the use of the railway from adjoining lands not taken, and protecting such lands-that is, lands not taken-from trespass, or the cattle of the owners or occupiers thereof from straying thereout by reason of the railway. That section does not say that the fences are to be made by the railway company, if requested, or within six months, or within five years. The language used is as large as it can be. An obligation without any limitation of time is there imposed. The railway company did in fact put up a fence -with what intention does not signifythe effect of which was to prevent cattle running into danger. The plaintiff does not complain of the defendants having put up the fence. What he does complain of is that they did not afterwards maintain the fence as required by the Act of Parliament, but allowed it to become rotten. That is the cause of action. The defendants contend that they were not required within five years after the completion of the railway to put up the fence, and that inasmuch as they were not compelled by an order of Justices under section 69 to make it within five years they are not bound at all either to make it or to maintain it when made. The contention, in other words, is that section 73 puts a limitation upon section 68, where the procedure provided by section 69 has not been followed. It appears to me that If there is nothing to limit section 68. the case had been brought within sec