While the section of the Act of 1888, which required the railway to fence, contained a sub-section confining the damages, in case of non-fencing, to injuries done by trains and engines to cattle, horses and other animals, not wrongfully on the railway and having got there through the omission to fence, there was an argument in favour of the view taken by Mr. Justice Sedgwick. But now that section 254, providing for fences, has no such sub-section, it seems to me that, though the section does say in sub-section 3 that the fences shall be suitable and sufficient to prevent animals from getting on the track, we are not thereby bound to hold that the provision as to fencing as it now stands is merely for the purpose of keeping animals off the track, and that it would be complied with by merely fencing the track itself, leaving open the portion of the right of way between such fences and the adjoining farms. The provision as to the nature of the fences was in the body of section 194 of the Act of 1888, and it is still a proper requirement in any view of the present Act. Undoubtedly one great object still is to keep cattle from getting onto the track, and so it was properly retained in the new section. But, in view of the removal from section 194 of the 1888 Act of the provision as to liability for cattle killed, and of the enactment of that provision by a separate section, in a different part of the Act and under a different heading, I do not think we should hold now that it shews the whole liability for breach of the duties imposed by section 254, and that therefore protection of the track from cattle is the only object of fencing, but that we may now take the view which was adopted by the Ontario Court of Appeal in the James case, and which, as to the present Act, is taken in the judgment of Mr. Justice Stuart in the case of Winterburn v. Edmonton, reported in 8 W.L.R. 815, that the fences should be on the line between the right of way and the adjoining lands. If I am right in the above, then the omission to fence in this case was the cause of cattle getting into the plaintiff's field and injuring his grain, and under section 427 of the present Act the plaintiff should recover damages. I would allow the appeal with costs and enter judgment for the plaintiff for $417 with costs in the Court below to the plaintiff. PERDUE, J.A.:-The various enactments relating to the fencing of railways passed prior to the Railway Act, 1903, shew that the purpose of those enactments was to impose upon railway companies the duty of erecting fences for the purpose, in so far as adjoining owners were concerned, of preventing cattle from getting upon the tracks and being injured by trains. Section 194 of the Railway Act of 1888 dealt with this matter. It declared that fences should be erected and maintained of the height and strength of ordinary division fences, and also cattle guards at highway crossings suitable and sufficient to prevent cattle and other animals from getting on the railway. Sub-section 3 of that section declared what should be the liability of the railway company in case of omission to comply with the requirements as to fencing and placing cattle guards. The only liability for which the company was responsible in consequence of such omission was to make good in damages any loss sustained by the owner of cattle which got upon the railway by reason of the neglect to erect and maintain fences and cattle guards and which were injured by the company's trains or engines. Section 199 of the Railway Act, 1903 (now sec. 254 of R.S.C. 1906, ch. 37), re-enacts the provision as to erecting and maintaining fences and cattle guards. It declares that the fences shall be of a minimum height of four feet six inches on each side of the railway and that such fences and cattle guards shall be suitable and sufficient to prevent cattle and other animals from getting on the railway. There is no special provision in the Act declaring what shall be the liability of the company in case of its failure to observe the requirements of the section. The general penalty clause, R.S.C. 1906, ch. 37, sec. 427, declares that where the company omits to do any matter, act or thing required to be done by it, it shall be liable to any person injured by such omission for the full amount of damages sustained thereby. It is contended that under these two last mentioned sections the defendants are liable for the damage caused by cattle which entered on his crop from the defendants' right of way by reason of the failure to construct fences and cattle guards. The history of the legislation and provisions relating to the same matter contained in earlier Acts are important in interpreting the meaning of a statute: Maxwell on Statutes, 48. In none of the former railway Acts was there any provision which made the railway company liable for damage caused by cattle entering on land from its right of way. The provisions contained in the present Act compel the company to construct fences and cattle guards sufficient to prevent cattle from getting on the railway. The prior legislation in regard to fences and cattle guards had clearly for its object the exclusion of cattle from the right of way. This having been the object of the fencing provision for such a long period of time, it seems to me that we must consider the words, "sufficient to prevent cattle getting on the railway," as not merely descriptive, but as shewing the purpose of the enactment and the object in view, namely, to prevent cattle from getting on the track and being injured. In England a statute required a railway company to fence its line for the purpose of preventing cattle from straying upon the railway. Although this might give the landholder a right of action in case there was a breach of the enactment and his cattle were injured by getting on the line in consequence of it, yet a passenger injured by an accident caused by such cattle getting on the line was held not entitled to an action for neglect to fence: Buxton v. N.E.R., L.R. 3 Q.B. 549. At common law the defendants are not bound to fence their property. Their obligation to do so must be created by the statute, if such obligation is to exist. The case just cited shews that the meaning of the statute cannot be stretched so as to include a liability for default, which does not appear clearly to have been contemplated. I would refer to Gorris v. Scott, L.R. 9 Ex. 125; Atkinson v. Newcastle Waterworks Co., 2 Ex. D. 441; McKellar v. C.P.R., 14 M.R. 614. A different interpretation of the enactment in question has been given by the Supreme Court of the North-West Territories in Winterburn v. Edmonton Ry. Co., 8 W.L.R. 815, and I regret that I cannot come to the same conclusion. A substantial injury was caused to the plaintiff by the omission to fence, but before he can obtain relief it must be shewn that the injury was one for which the statute intended to provide a remedy. J.A. I agree that the appeal should be dismissed with costs. Appeal dismissed. ANIMALS AT LARGE-SIDING AGREEMENT. ONTARIO.] [DIVISIONAL COURT. WOODBURN MILLING CO. v. GRAND TRUNK R.W. Co. (19 0.L.R. 276.) Railway-Agreement for Use of Siding-Construction—Protection of Railway from Animals—Negligence-Gate Left Open-Escape and Destruction of Animal-Implication of Terms in Contract. A siding was constructed by the defendants from the main line of their railway to the plaintiffs' mills, which stood in a two-acre enclosure bounded on one side by the defendants' fence. At the point where the siding entered the plaintiffs' land the defendants constructed and maintained a gate across the siding and connected with the fence on each side; this gate was usually kept shut by the defendants' servants except when taking cars to or from the mills, but it was not alleged that there was any agreement that the defendants should keep it shut. The gate was left open by the defendants' servants on one occasion after they had removed a car from the siding, and the plaintiffs' horse, which was loose in the two-acre yard, escaped through the gate and was run over by a train of the defendants on the permanent way. In an action to recover damages for the loss of the horse, the jury found that the injury was caused by the negligence of the defendants' servants in leaving the gate open. A clause in the agreement between the parties concerning the use and maintenance of the siding provided that the plaintiffs should "protect the railway of the company from cattle and other animals escaping thereupon from such portion of the siding as may be outside of the lands of the company:" Held, that this meant that the plaintiffs should keep animals from escaping from that part of their land occupied by the siding to the property of the company; the defendants owed no duty to the plaintiffs to keep their animals away from the line of railway; the placing of the gate by the defendants, their custom of closing it, and the complaints of the plaintiffs that it was sometimes left open, could not create such a duty; and, therefore, there could be no negligence on the part of the defendants. Per RIDDELL, J., that in the construction of the agreement it was of no significance that the clause above quoted was in the printed form of the defendants, a great part of the form having been struck out and much matter written in; also, that the practice of importing implied terms into a contract is a dangerous one; and there could be no implication here of a condition that the plaintiffs would be relieved from the agreement if the defendants left the gate open. Judgment of the County Court of Middlesex affirmed; BRITTON, J., dissenting. THIS action was brought in the County Court of Middlesex to recover $200 damages for the loss of a horse owned by the plaintiffs, which was killed by a train of the defendants, owing, as the plaintiffs alleged, to the negligence of the defendants. The action was tried before MACBETH, Co. C.J., and a jury on the 8th December, 1908. The jury found that the injury to the plaintiffs' horse was caused by the negligence of the defendants' servants in leaving open the gate across the switch line leading to the plaintiffs' mill. The County Court Judge reserved judgment, and on the 9th January, 1909, dismissed the action, giving the following reasons: In the month of August, 1907, the plaintiff company owned and operated flour mills in Glencoe. These mills stand in an enclosure of about two acres in extent, which is bounded on the south by the defendant company's fence. During the ownership of the plaintiffs' predecessors in title, a siding was constructed from the main line of the railway to the mills. The location of the siding and of the mills is shewn on the plan attached to the agreement made between the parties concerning the use and maintenance of the siding. The street shewn on the plan to the east of the mills has not been opened, and is enclosed with the plaintiffs' lands. A black mark made by a witness on the plan, at the point where the siding is shewn as entering the plaintiffs'. land, indicates the position of a gate made and maintained by the defendants across the siding and connected with the railway |