delivered the opinion of the court.

The appellee brought this action to recover from the appellant the statutory penalty of two hundred and fifty dollars foían alleged failure, on appellant’s part, to make a convenient and suitable crossing over its track for a necessary plantation road. The case was heard by the court, a jury having been waived, on an agreed statement of facts, and judgment rendered for plaintiff below-, the appellee here, and from this judgment the railroad appeals.

We are informed by this agreed statement of facts that the railroad company acquired title to its right of way in June, 1883; that its right of way, on both sides, is inclosed by a wire fence; that the public highway runs on the west side of the appellant’s right of way, and that his house is also on that side of the right of way; that there is no road over or across the right of way and track of the railroad . company at the point where appellee demanded the crossing to be made, and that there has never been; that the track of appellant’s road runs through the farm of appellee, dividing his house and its buildings and his cultivated land from the woodland, which is used as a pasture, lying on the other side of the track, and that to pass from one side of his farm to the other appellee is compelled to leave his own premises and use a crossing on a neighbor’s land.

There are two grounds which are urged by appellant’s counsel for a reversal: 1. The railroad-company acquired its right of way before the enactment of our statute requiring railroads to make and maintain crossings over its track for necessary plantation roads, and that its attempted application in the present instance would be unconstitutional, in that it would be depriving the railroad company of its property without due process of law. 2. That the railroad company offered, on appellee’s demand, to made the desired crossing bv erecting gates through its fences, which appellee declined, and that, therefore, the judgment was erroneous.

*586With the first proposition it is unnecessary for us to deal, in view of our opinion on the second proposition.

There is nothing to show that the crossing through gates would not be convenient and sufficient for appellee’s uses and purposes. The railroad is not required by law to fence its tracks, but it surely has the right to do so. That safety of the traveling public, as well as that of the employes and trains of the railroad company,' would be increased by fencing its track is self-evident. The demand of the appellee is that the railroad company shall tear down its fences, and give appellee an open lane at the place where the crossing is desired, with stock gaps and cattle guards, at the expense of the company. This would be burdensome to the company, and would, moreover, increase the danger to passengers, employes and trains by leaving an open space on which live stock might congregate.

The statute under which suit was brought is a highly penal one, and should be strictly construed, and when the railroad company has offered to give the way over its track, with a crossing convenient and suitable, it has met the requirements imposed by law.

Reversed and remanded.