Southern Railway Co. v. Harrell

Lewis, J. Prior to the passage of the act of 1889, embodied in sections 2243 et seq. of the Civil Code, we are not aware of any statute imposing upon railroad companies in this State the duty of building or maintaining cattle-guards. The only law now upon the subject is that embraced in the sections above cited. Section 2243 requires a railroad company “to build and maintain at its own expense good and sufficient cattle-guards on each side of every public road or private way established [604] pursuant to law, and on the dividing line of adjoining landowners where the railroad may cross such public roads, private ways, or dividing lines, when necessary to protect said lands.” Even before the company can be required to build cattle-guards .at such places, thirty days written notice must be given to its agent or officer by the owner of the land to be affected by such cattle-guards. The declaration in this case does not show that the cattle-guard in question is located either at a public road or private crossing, or on the dividing line between adjoining landowners, nor does it show that the notice required by the statute was given to the defendant’s agents or officers.' If a cattle-guard is desired by the owner at any other point on his land than the places above designated, it then becomes the duty of the railroad company, upon written notice as provided in the section above cited, within ten days after the service of such notice, to submit to the landowner, or his agent, if to be found, a written estimate of the cost of such cattle-guard or farm-crossing. If the landowner is satisfied with the estimate, he shall pay the amount to the company, or if he and the company can not agree as to the correctness of the estimate, then the same shall be determined as are damages for right of way. See section 2245 of the Civil Code. Where a cattle-guard is required under section 2243, the company must pay the expense of building and maintaining the same; when required under the last section above cited, the owner of the land must incur such expense. The petition utterly fails to set forth a case against the defendant company under either one of these provisions of the statute. We think, therefore, the demurrer should have been sustained. Rossignoll v. N. E. Railroad, 75 Ga. 354. Judgment reversed. All the Justices concurring.