Illinois Central R. R. Company v. William W Wade.

1. . Pleasing at law—of the declaration. In an action against a railroad company fpr killing stock, the declaration, in stating the excepted places specified in the • statute, which a railroad company is not required to fence, used the word “wmimproved,” instead of “wienclosed,” as used in the statute ; held, that this averment was sufficient. The exception having been stated larger, and the obligation of the company less than it is, the.defendant could not complain.

Appeal from the Circuit Court of Woodford county; the Hon. Samuel L. Richmond, Judge, presiding.

The opinion states the case,

Messrs. Cook & Campbell, for the appellant.

Messrs. Ingersoll & Puterbaugh, for the appellee.

*116Mr. Justice Lawrence

delivered the opinion of the Court.

This was an action against the railway company for killing plaintiff’s stock. The only error,assigned is, that the 'demurrer to the first count in the declaration was improperly overruled. The objection taken, is, that the count does not show the place where the stock was killed not to have been one of the excepted places specified in the statute, which the company is not required to fence. The pleader, in stating these excepted places, used the words “wvimproved land at a greater distance than five miles from any settlement;” whereas, the statute used the words “uninclosed lands.” The pleader has, therefore, stated the obligation of the railway company as less than it really is, and that is certainly no ground of objection on its behalf. The enclosure of land is an improvement of it, as would also be the erection of a house upon it. It is something done towards its enjoyment. But land may also be improved without being enclosed, as by ploughing. To aver, therefore, that land is unimproved, is to aver that it is uninclosed, and something more. It is to aver that it is neither inclosed nor cultivated. When, then, this declaration avers that it was the duty of the company to fence its road, except where it ran through umkrirproved land, it states the exception as larger than it really is, and the obligation of the company as less than it is. The verbal inaccuracy in the declaration, in using the word uwvm/proved in place of mvmdosed, was an error in favor of the railway, and one of which it cannot complain.

Judgment affirmed.