Effective 28 Aug 1939

389.650. Lawful fences, gates, who may build — trespassers. — 1. Every railroad corporation formed or to be formed in this state, and every corporation to be formed under this chapter, or any railroad corporation running or operating any railroad in this state, shall erect and maintain lawful fences on the side of the road where the same passes through, along or adjoining enclosed or cultivated fields or unenclosed lands, with openings and gates therein, to be hung and have latches or hooks, so that they may be easily opened and shut, at all necessary farm crossings of the road, for the use of the proprietors or owners of the land adjoining such railroad, and also to construct and maintain cattle guards, where fences are required, sufficient to prevent horses, cattle, mules and all other animals from getting on the railroad; and until fences, openings, gates and farm crossings and cattle guards as aforesaid shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done by its agents, engines or cars to horses, cattle, mules or other animals on said road, or by reason of any horses, cattle, mules or other animals escaping from or coming upon said lands, fields or enclosures, occasioned in either case by the failure to construct or maintain such fences or cattle guards.

2. After such fences, gates, farm crossings and cattle guards shall be duly made and maintained, said corporation shall not be liable for any such damage, unless negligently or willfully done.

3. If any corporation aforesaid shall, after three months from the time of the completion of its road through or along the lands, fields or enclosures herein named, fail, neglect or refuse to erect or maintain in good condition any fence, openings or farm crossings or cattle guards as herein required, then the owners or proprietors of said lands, fields or enclosures may erect or repair such fences, openings, gates or farm crossings or cattle guards, and shall thereupon have a right to sue and recover from such corporation in any court of competent jurisdiction the cost of such fences, openings, gates, cattle guards or repairs, together with a reasonable compensation for his time, trouble and labor in and about the construction of such fences, openings, gates or cattle guards, or the making of such repairs, together with ten percent interest per annum thereon, from the time of the service of process upon such corporation in such suit; provided, that before such repairs are commenced, such owner shall give five days' notice, in writing, to the railroad company, by delivering a copy thereof to the nearest section foreman or station agent of such railroad company, that the railroad fence needs repairs at a place or point named in the notice, on the lands of such owner.

4. And in every such action, if the plaintiff recover judgment, there shall be taxed as costs against the defendant an attorney's fee, to be fixed by the court or associate circuit judge before which or whom the cause may be pending, at such sum as may be a reasonable compensation for all legal services rendered for plaintiff in the case, without regard to any agreement between plaintiff and his counsel as to fees; but such fee shall not be taxed so long as any appeal taken in such case shall remain undisposed of.

5. And if any person shall ride, lead or drive any horses or other animals upon such road within such fences and guards other than a farm crossing, without the consent of the corporation, he shall, for every such offense, forfeit and pay a sum not exceeding ten dollars, and shall also pay all damages which shall be sustained thereby to the party injured.

6. If any person not connected with or employed upon the railroad shall walk upon the track or tracks thereof, except where the same shall be laid across or along a publicly traveled road or street, or at any crossing, as herein provided, and shall receive harm on account thereof, such person shall be deemed to have committed a trespass in so walking upon said track in any action brought by him on account of such harm against the corporation owning such railroad, but not otherwise.

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(RSMo 1939 § 5218)

Prior revisions: 1929 § 4761; 1919 § 9948; 1909 § 3145

CROSS REFERENCE:

Injury to stock because of insufficient fence, damages, 537.270 to 537.290