Southern Railway Co. v. Murrell

Calhoon, J., delivered the opinion of the court. Section 3561 of the present code is this: “It is the duty of every railroad company to construct and maintain all necessary or proper stock gaps and cattle guards where its track passes through inclosed land. . . . For any failure so to do, the railroad company shall be liable to pay two hundred and fifty dollars, to be recovered by the person interested.” Our first legislative action on the subject-matter of this section was by an act of 1884. (Laws 1884, p. 42.) Before there was any statute on the subject, it was held that railroad companies were under no obligation to ‘ ‘ construct these appliances.” Vicksburg, etc., R. R. Co. v. Dixon, 61 Miss., 119. All the cases touching the interpretation of [449] the statute hold, of course, that it is highly penal and should have strict construction. The facts in the instant case are, briefly, these: A Mrs. Torrey seems to have owned a large plantation, which was under fence, and which she leased in parcels to divers tenants, the land of one of which so leased was entered by appellant’s road; and this tenant had sued appellant and recovered, from it both the statutory penalty for defective gaps and also $250 damages for live stock depredations committed because of the defective gaps. Subsequently appellee, another tenant, whose leased parcel of land was not entered by the railroad, but which adjoined the parcel of the other tenant, brought this suit for damages for like depredations. The court below instructed the jury to find for appellee, and assess the damages which it was agreed he had suffered. Counsel for appellee presents a very elaborate and forceful argument in the effort to support his case on general principles, and to show that it is not in conflict with the reasoning of the case of Kansas City, etc., R. R. Co. v. Spencer, 72 Miss., 492, s.c. 17 South., 168, and to differentiate it from the case of Kansas City, etc., R. R., Co. v. Jones, 73 Miss., 397, s.c. 18 South., 684; but it cannot be done. A tenant owns his land for the term, and he may sue where the railroad enters his parcel (Alabama, etc., R’y Co. v. Ligon, 74 Miss., 176, s.c. 20 South., 988), and he manifestly occupies no better position in reference to the tenant of another parcel under the same general inclosure than, a coterminous proprietor in fee. Now, in considering this question in Kansas City, etc., R. R. v. Jones, 73 Miss., 397, s.c. 18 South., 385, this court, in construing this highly penal statute, says it ‘ ‘ confines the right of action to those whose lands are entered by the line of the railway. ’ ’ See, also, Seelbinder v. Illinois, etc., R. R. Co., 73 Miss., 84, s.c. 19 South., 300. Beversed and rema/nded.