Terre Haute & Indianapolis Railroad v. Susannah, 60 Ill. App. 111 (1895)

June 3, 1895 · Illinois Appellate Court

60 Ill. App. 111

Terre Haute and Indianapolis Railroad Co. v. Susannah

1. Railroads—Fencing Right of Way—Failure—Rights of Laná Owner.—On the failure of a railroad company to build or repair fences as required by law, the owner of the adjoining land, after notice, may do so and recover for double the value thereof.

Transcript from a Justice of the Peace.—Action for building and repairing railroad fences. Appeal from the Circuit Court of Edgar County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1894.

Affirmed.

Opinion filed June 3, 1895.

T. J. Golden and J. E. Dyas, attorneys for appellant.

James A. Eads, attorney for appellee.

Hr. Justice Boggs

delivered the opinion of the Court.

Action by appellee to recover under sections 65, 66, chapter 114, R. S. (S., & C. Statute, Vol. 2, p. 1934), double the cost of repairing fence of appellant company. Cause heard by the court. Judgment v. appellant $100.70. The notice to the company was to repair a fence, and appellant insists that the recovery was for building a new fence. We think not. The company had a fence at the place in question. It was torn down and rebuilt, the necessary new material being added. It is urged that the fence as rebuilt was not suitable and sufficient to turn the animals enumerated in the statute. We have carefully read the evidence. It was not free from conflict, but we incline to agree with the trial court that the preponderance was with the appellee. No other questions are presented. The judgment is affirmed.