Fence Ordinance (N.W.T. 1903, 2nd session, ch. 28), sub-secs. 2, 7-Railway Act (R.S.C. 1906), ch. 37, sec. 254-Damage to crops by animals gaining access from right of way—Liability of railway company-Right of way not fenced. Section 254 of the Railway Act requires the railway to fence its right of way under certain conditions, and sub-section 3 provides "such fences shall be suitable and sufficient to prevent cattle and other animals from getting on the railway." Section 427 provides that "every company omitting to do any act or thing required to be done is liable to any person injured thereby for the full amount of damages sustained by such omission." Held, that where the railway company had not fenced its right of way adjacent to the plaintiff's lands, and cattle came in on such lands and caused damage to crops by reason of the company's neglect to erect fences, the railway company is liable notwithstanding that the rest of the lands are not enclosed by a "lawful fence." Remarks on Fence Ordinance (N.W.T. 1903, 2nd session, ch. 28), sub-secs. 2, 7. MOTION for judgment on the verdict of a jury in an action for damages alleged to have been caused by reason of the neglect of the defendant railway company to erect fences. This action was tried before Harvey, J., on the 25th day of February, 1908. The facts sufficiently appear in the judgment. O. M. Biggar, for defendant, cited sections 254, 294, 427, of Railway Act, ch. 37, R.S.C. 1906; 22 Vict. ch. 66, secs. 13 et seq. 147-9; 42 Vict. ch. 9, sec. 16; 46 Vict. ch. 24; 49 Vict. ch. 109, sec. 13; 51 Vict. ch. 29, sec. 194; C.O. (1905), ch. 77; Elliott v. Buffalo & Lake Huron R.W. Co., 16 App. Cas. 289; Bradly v. Great Western R.W. Co. (1854), 11 U.C.R. 220; Ferguson v. Buffalo & Lake Huron R.W. Co., 16 U.C.R. 289; Bradly v. v. Grand Trunk R.W. Co. (1865), 24 U.C.R. 350; Nichol v. 1-IX. C.RY.C. Canada Southern R.W. Co. (1873), 40 U.C.R. 583; Young v. G. B. O'Connor, for plaintiff, cited St. Louis R.W. Co. v. Sharp, 13 Am. & Eng. R.R. Cas. 595; Billing v. Semmens (1904), 7 O.L.R. 340; Lizotte v. Temiscouata R.W. Co. (1905), 6 Can. Ry. Cas. 41, 37 N.B.R. 397; Levesque v. New Brunswick R.W. Co. (1889), 29 N.B.R. 588; Masson v. Grand Junction R.W. Co. (1879), 26 Gr. 286; Routledge v. Wood, 12 U.C.R. 63; Nelson v. Minneapolis (1889), 40 Am. & Eng. R.R. Cas. 234; Pound v. Port Huron (1884), 19 Am. & Eng. R.R. Cas. 640; Emmons v. Minneapolis (1888), 35 Am. & Eng. R.R. Cas. 126; Davidson v. Grand Trunk R.W. Co. (1903), 5 O.L.R. 574; (James v. Grand Trunk R.W. Co. (1900), 1 Can. Ry. Cas. 407, 31 S.C.R. 420, not followed); Carruthers v. Canadian Pacific R.W. Co. (1906), 6 Can. Ry. Cas. 16. March 28, 1908. HARVEY, J.-The defendants' line of railway crosses the land of the plaintiffs. During the construction of the railway, and later, its operation in 1906 and 1907, the fences along the highway at the crossing of the railway were torn down, and no fences were ever erected along the right of way through the plaintiffs' land. Cattle came in on the plaintiffs' land and caused damage to crops, and stacks of hay and grain. The action was tried before me, with a jury, and I instructed the jury that if they found that the cattle got on the land and caused damage by reason of the defendants' neglect to erect fences they were to assess the damages. The jury found a verdict in favour of the plaintiffs for $1,202.50, on which the plaintiffs now move for judgment. The evidence shewed that the rest of the plaintiffs' land was not surrounded by a lawful fence within the meaning of the Fence Ordinance, ch. 28 of 1903 (2nd session), and the defendants' counsel contends that the plaintiffs cannot recover by reason of section 2, which provides that "No action for damages. caused by domestic animals shall be maintained nor shall domestic animals be liable to be distrained for causing damage to property unless the same is surrounded by a lawful fence." Counsel for the plaintiffs objects that this statute, not having been pleaded, cannot be taken advantage of. Apart from this objection and the consideration of permitting an amendment, it appears to me that the contention cannot be upheld. Section 7 is as follows: "The owner of any domestic animal which breaks into and enters upon any land surrounded by a lawful fence shall be liable to compensate the owner of such land for any damage done by such animal." It appears to me that section 2 contemplates actions against the owners of animals only, and that it can have no application to cases where the damage is caused by the wilful act or neglect of the defendant, even should he be the owner. If it were otherwise a person might deliberately tear down a fence and drive in cattle and escape liability, provided any portion of the fence did not answer the description of a "lawful fence." Indeed, it would seem to go even further, for though there might be a lawful fence everywhere when a part was torn down, there would be none there and hence the plaintiffs' action would be barred. I have no hesitation in declining to accept an argument which leads to such conclusions. It was also suggested that under the Fence Ordinance the plaintiffs would have had the right to erect a fence and recover the cost from the defendants. In view of the obligation to fence imposed by the Railway Act, it would appear that the provisions of the Ordinance could not apply, but even if they did, the right to take this course would not involve the obligation to do so, and the failure to do so would not excuse the defendants' neglect. The question to be determined then is, whether the damage suffered is one for which the defendants can be held liable in view of the provisions of the Railway Act, ch. 37 R.S.C. (1906), sec. 254, which prescribes what fencing, etc., shall be done by the railway, and sub-sec. 3, which is as follows: "3. Such fences, gates and cattle guards shall be suitable and sufficient to prevent cattle and other animals from getting on the railway," seems to indicate the object of the section, and it is urged that the damage suffered here does not come within the purview of the section, and the defendants cannot be held liable. It has, no doubt, been held that a railway company is only liable under this section for injuries done to animals on the railway, the latest case to which my attention has been called being McKellar v. Canadian Pacific R.W. Co. (1904), 3 Can. Ry. Cas. 322, 14 Man. L.R. 614; but that case was decided under the Act of 1888, in which the section corresponding to section 254, viz. 194, contained a provision declaring the company liable in case of neglect, "for all damages done by its trains and engines to cattle, horses and other animals not wrongfully on the railway." When the new Railway Act was passed in 1903 this provision was left out, and it is necessary to determine whether the effect of the amendment of the law by its omission is to extend the liability of the railway company to such cases as the present. For this purpose it seems useful to look at the conditions when the law was changed. The Railway Act in force at the time of Confederation, ch. 66 of the Consolidated Statutes of 1859, contained in section 13 very similar provisions to the section as to fencing contained in the Act of 1888, with similar provisions as to liability. It also contained another section 16, requiring under certain conditions the company to erect fences for the benefit of adjoining owners sufficient "to keep out cattle," etc., but without any penalty clause for failure. It was held by the Courts that neglect to comply with this provision rendered the company liable for damages by trespassing cattle. See Nichol v. Canada Southern R.W. Co. (1873), 40 U.C.R. 583. This provision was incorporated in the Ontario Railway Act and is contained in the Revised Statutes of 1897. It was, however, dropped when the first federal Act was passed in 1868, and has never been incorporated in any Dominion Act. In 1888, however, section 289 was added declaring that "every companyomitting to do any matter, act or thing required to be doneis liable to any person injured thereby for the full amount of damages sustained by such omission." In view of the special and limited liability imposed by the section relating to fences, the liability of the company was not held by the Courts to be increased. In 1901, in the Grand Trunk R. W. Co. v. James (1900), 1 Can. Ry. Cas. 407; 31 S.C.R. 420, the Supreme Court of Canada considered the liability of the company under the then section 194, and at p. 431, Sedgewick, J., says: "The only penalty for breach of the requirements in regard to fences and cattle guards is that in the event of the company's neglect, the company shall be liable to the owner, not for all damages which may happen to him or his property, but only for the damage which he may suffer on account of animals killed or injured by the company's trains or engines." This, then, was the state of the company's liability as declared by the Courts when less than two years later Parliament passed the Act of 1903. The omission of the liability clause, which had been in the section ever since Confederation, from the section in this must have been for some purpose, and the only reason I can see for it was to extend the liability by making applicable the general penalty section which was continued, and is to be found in the present Act as section 427. If I am correct in this conclusion, the damages caused, being the natural and probable consequences of the defendants' neglect, there can be no doubt of this liability. A case very similar to this is Pound v. Port Huron and South-Western R.W. Co. (1884), 19 Am. & Eng. R.R. Cas. 640, where, at p. 641, it is stated: "How. Stat. 3377 requires every railway company to fence its right of way in such manner that cattle cannot get thereon. The evidence in this case shews that it was by getting upon |