Mulhall and Another uthern Railways Company
| Jurisdiction | Ireland |
| Judgment Date | 24 October 1935 |
| Date | 24 October 1935 |
| Court | High Court (Irish Free State) |
High Court.
Railway company - Liability to fence - Extent of liability - Cattle on highway trespassing on railway line and thence on to adjoining lands - Owner of adjoining lands also owner of soil of highway - Injury to adjoining lands - Action for damages - Railways Regulation Act, 1842 (5 & 6 Vict. c. 55)sect. 10 - Railway Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20),sect. 68.
The plaintiff had some sheep, which grazed, with the sheep of other persons, upon a mountain-side bordering a public road. On the other side of the public road a railway company had its line, and beyond the line was arable land owned by the plaintiff. The soil of the public road was the plaintiff's property. The plaintiff's sheep and other sheep crossed from the mountainside to the public road, thence on to the railway line and thence on to the arable lands of the plaintiff, owing to the fences of the railway company and of the plaintiff being defective. The sheep having caused damage to these arable lands, the plaintiff issued a Civil Bill against the railway company for damages.
Held that, as the railway company was bound under sect. 68 of the Railways Clauses Consolidation Act, 1845, to fence against trespass on both sides of the railway line, liability wag imposed on them to prevent, by fencing, the cattle of owners or occupiers of lands adjoining the railway line from straying upon the line and therefrom into other adjoining lands, and accordingly the company were liable in damages to the plaintiff.
Manchester, Sheffield and Lincolnshire Railway Co. v. Wallis, 14 C. B. 213, and Greer v. Belfast and County Down Railway Co., [1926] N. I. 68,distinguished.
Appeal from the Circuit Court.
The plaintiff, Thomas P. Moynihan, issued a Civil Bill against the defendants, the Great Southern Railways Company, the claim as indorsed thereon being for
"1. £80 0s. 0d. damages for that the defendants, being bound by law to repair and keep in repair the fences separating the defendants' line of railway from the lands lawfully in the possession and occupation of the plaintiff, adjoining the said line of railway and situate at Doonore North, in the Parish of Kilboggan, Barony of Corkaguiny and County of Kerry, wrongfully and in breach of their statutory duty in that behalf neglected and failed to repair and keep in repair the said fences, in consequence of which neglect and failure cattle and sheep at divers times in the years 1929, 1930, 1931, 1932 and 1933, respectively, wandered upon the said lands and persistently trespassed thereon and damaged and depastured the same to the plaintiff's loss in the sum claimed.
2. An order in the nature of a mandatory injunction to compel the defendants to repair and keep in repair the said fences.
3. Costs of the proceedings.
Particulars of special damage.
| 1929 | Trespass of sheep on pasture land | £10 0 0 |
| 1930 | do. | 10 0 0 |
| 1931 | do. | 10 0 0 |
| 1932 | Trespass of cattle and sheep on 91/2acres of the lands above mentioned | 9 10 0 |
| Trespass on meadow containing 2 acres 1 rood | 15 0 0 | |
| 1933 | Trespass on 11... |
To continue reading
Request your trial