$335. The need of legislation was pressing. In an early case the supreme court held that after the assessment and payment of damages by a railroad company for the right of way the corporation was not bound to make fences on either side of its road bed. The court went so far as to say that after the condemnation of the land and the payment of damages, the proprietor of the adjacent land could not lawfully fence the land at his own expense, or do anything to prevent his cattle from getting on the track. 1

$336. If the railroad had been open to use at the time of the passage of the law, it had to be fenced within six months after the first law was passed, and every road since built must be fenced within six months after any part of it comes into use, the fence to extend to the part in use. In case of suit for damage under the act the courts rule that the action must state that the road had been in operation the specified length of time.

§ 337. The fence must be sufficient to prevent cattle, horses, sheep and hogs from getting on to the track. This includes mules and asses, also "unruly" cattle, to a reasonable extent. Cattle guards, or ditch fences, at crossings are included in the requirement for fencing. These fences and cattle guards must be kept in good repair. If they are the company is absolved from liability for stock killed, unless negligently or willfully done.2

$338. This fence requirement entends only to cases

1 Alton and Sangamon R. R. Co. v. Baugh, 14 Ill. 211.

2 In nearly every suit for cattle killing the real issue is joined on the sufficiency of the fence, or cattle guards, especially the former.

in which it is necessary to keep cattle from straying on the track from adjoining lands. If the adjoining land is unenclosed the requirement does not hold. The third exemption named is where the proprietor of the land has already erected a fence, or agreed with the company to do so.

§ 339. In case the owner of the adjacent land has entered into any such agreement he must carry it out. The six months requirement applies to such a contractor, the same as to the railroad company. If he or his heirs or assigns neglect to do so, the railroad company must, relying for compensation upon a civil action to recover the expense incurred. The statute adds that in case any cattle belonging to a person guilty of such breach of contract should be killed by engine or cars, the company should not be liable for damages therefor, providing they came "upon said road by reason of or on account of the failure of such owner, or owners, their heirs or assigns, to construct or maintain said fence."

§ 340. The same statute provides a penalty of not less than $10 nor more than $100 for riding, leading or driving any animal upon a railroad and within such fences and guards, other than at farm or road crossings, unless permission to do so has been obtained from the corporation. The same penalty is provided for pulling down or in any way impairing the efficiency of the fences or guard. The guilty party must also pay all damages which may result from carelessness or malice. The fine provided is recoverable in an action of debt, before any court having jurisdiction in such cases, in the name of the company and for its use.1

1At this point the first law ends. The act of 1869, while it leaves the foregoing provisions in force, practically modified somewhat the mode of procedure.

§ 341. Whenever the company is obliged to fence its track, as specified in the foregoing, if it fail to do so the owner or occupant of the adjacent land may give notice in writing to the corporation, or the lessee, or the person using the road, to build the required fence within sixty days, or to repair it within thirty days, as the case may be, after the service of such notice. The notice shall describe the land on which the fence is required to be built or repaired, with a reference to the statute for the information of the agent notified. Notification may be served by delivering the same to any station agent of the company. In case the railroad corporation should refuse or neglect to do its duty in the premises the notifier may make the necessary outlay, and recover the amount thus expended, with interest at one per cent. per month, "together with all costs, fees and disbursements to be taxed." Such notice must be given on some day between the first day of March and the first day of October in any year.

§ 342. In case the stock gets on the track without the fault of the company, the law requires the claimant for damages to show that the train might have been stopped and the injury have been prevented by due care and effort on the part of the servants of the company. It is worthy of remark, however, that in practice it is rarely difficult to satisfy a jury that in the case in hand the railroad company was in some way to blame, and ought to pay for the cattle injured or killed.

1

§ 343. All casualties by rail are not attributable to

1 Chicago and Northwestern R. R. Co. v. Barrie, 55 Ill. 226; Chicago and Mississippi R. R. Co. v. Patchin, 16 Ill. 198; Illinois Central R. R. Co. v. Baches, Administratrix, 55 Ill. 379.

the railroad companies and their agents. Occasionally malicious persons, from motive of revenge or for plunder, attempt to wreck a train. Three statutory provisions have been made to guard against such offenses.

344. The forty-fifth section of the railway statute of 1849 provides that "if any person shall willfully do or cause to be done any act or acts whatever, whereby any building, construction or work of a railroad company, or any engines, machine or structure, or any matter or thing pertaining to the same, shall be stopped, obstructed, impaired, weakened, injured or destroyed, the person or persons offending shall be guilty of a misdemeanor, and shall forfeit and pay to the said corporation treble the amount of damages sustained by means of such offense." 1

§ 345. In 1853 a more stringent act was passed. That statute provides a penalty of imprisonment for not less than one year nor more than five years for placing any obstruction upon any line of any railroad. in the state. In case actual injury should result, the penalty is fixed at not less than three years nor more than ten years. If loss of life should result, the offender is to be held guilty of murder.2

§ 346. In 1861 the general assembly passed a law to prevent the formation of conspiracies to obstruct railway trains. It was designed as a war measure, but is still in force, and applicable to bandits. It provides the punishment of imprisonment not less than two years nor more than five for entering into such a conspiracy. Attempting to throw a train off the track would subject the conspirators to imprisonment in the 1 Gross' Statutes, vol. i, page 550. 2 Gross' Statutes, vol. i, page 540.

penitentiary not less than six months nor more than ten years. The same penalty is prescribed for trying to entice others to join in the conspiracy. The enforcement of this act is enjoined upon all officers, civil and military, of the state, and upon all residents of the

state.

VII. LIVE STOCK; THISTLES.

§ 347. Two laws, humane and sanitary.

348. Transportation of live stock.

349. Importation of Texas or Cherokee cattle.

350. Penalty for violating the law.

351. Definition of the term Texas or Cherokee cattle.

352. Cattle pens at railway stations.

353. Cutting down Canada thistles.

§ 347. The usual freight liabilities attach to the transportation of live stock. In addition thereto are certain specific liabilities. Two such additional laws are to be found on the statute books of the state. One of them was dictated by humane considerations, the other was the result of a wholesome fear of the cattle disease, as it is apt to exist in the extreme southwest.

$348. Sheep, cattle, swine, and other animals, cannot be kept in the same car more than twenty-eight consecutive hours, unless delayed by storm or some other unavoidable causes. When taken out for food and water an animal must be allowed at least five hours for rest.1 In estimating the time of confinement the time on connecting roads must be taken into the account. This provision does not apply when the

1 Gross' Statutes, vol. i, p. 18. The forty-second congress, on the last day of its last session, passed a similar law, which went into force October, 1873.