Central of Ga. Ry. Co. v. Sturgis

BENSON, J. — Section 3480 of the Code of 1896 is in this language: “Every person or corporation operating a railioad'must put cattle guards upon such railroad and keep the same in good repair, whenever the owner of the land through which the road passes shall make demand upon them or their agents, and show that such guards are necessary to prevent the depredation of stock upon his land.” This section of the Code was construed in the case of L. & N. R. R. Co. v. Murphree, 129 Ala. 432, 29 South. 592. That was a, suit prosecuted by a tenant of the landowner against the railroad company to recover damages caused by hogs getting into the plaintiff’s (tenant’s) field and destroying his crop. The cause of action was rested upon .the railroad’s failure to keep in repair a cattle guard on its road after demand made by the plaintiff. It was held in the case cited that the statute, being in derogation of the common law, should be strictly construed, and, following this rule of construction, it was held that the language of the statute forbids a construction extending its provisions to any other person than the owner of the land. The appellee assails the soundness of that decision, and asks that the court depart from- it. We are satisfied with the interpretation there placed on the statute, and must ádliere to it. It MIoavs that the second and fifth grounds of the demurrer to the or [578] iginal complaint should have been sustained. The averments of the original complaint are barely sufficient to show that the railroad had erected any stock gap. Certainly they are insufficient to show the erection of a stock gap on the land owned by the plaintiff. The count added by amendment is not subject to the demurrer made to it. It is not necessary to pass in detail on exceptions reserved to the rulings of the court on the admissibility of evidence. Suffice it to- say the plaintiff could not recover for damages done crops growing on his mother-in-law’s land, or lands which he did not own, notwithstanding he may have been cultivating them. Nor could he recover for damages caused by hogs that did not enter his land through the stock gap that was located on his land. Some of the court’s ruling's on the evidence are out of harmony with what we have here said. For the errors pointed out, the judgment of the circuit court is reversed, and the cause will be remanded. Reversed and remanded. Tyson, C. J., and Haralson, Dowdell, Simpson, Anderson, and McClellan, JJ., concur.