Louisville & Nashville Railroad v. Murphree

129 Ala. 432 | Ala. | 1900

DOWDELL, J.

The plaintiff bases his light of action in this case on section 3480 of the Code. This section reads as follows: “Every person or corporation operating a railroad 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,” As was said by this court in the ease of Birmingham Min. R. R. Co. v. Persons, 100 Ala. 665: “It is well understood that railroad companies are not bound by any principle of the common law to fence their roads,make cattle guards, or erect any other barrier or stay .'against the intrusion of stock upon their roads or right of way, and are not liable for injuries happen^ ing merely for want of such erections;” citing 7 Am. & Eng. Ency. Law, pp. 906, 912; 1 Rorer on Railroads, 614; M. & C. R. R. Co. v. Lyon, 62 Ala. 71. The statute in. question, being in derogation of the common law, requires a strict construction. The provision of the statute is, that, “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.” It will be seen that the demand, by the terms of the statute, is limited to the owner of the land. Owner is defined to be, “one Avho owns; a rightful proprietor; one who has the legal or .rightful title, whether he .is the possessor or not.” See Webster’s Inter. Diet. The same authority defines proprietor to be, “ one who has the legal right or exclusive title to anything, whether in possession or not; an owner; as the proprietor of a farm, or of a mill.” As defined by Bouvier, Vol. 2, “the owner is he who has dominion of a thing real or personal, corporeal or incorporeal, which he has the right to enjoy and do with it wliat he pleases, even to spoil or destroy it, as far as the law permits, unless he is prevented by some agreement or covenant which restrains his right.” The common, or general, acceptation of the term, owner, is understood to be, one who has the legal title to the thing claimed. The undisputed proof in the case shows that the plaintiff was not the owner of the land in question, but was only a renter for the.term of one year; paying money rent therefor; the ownership of the land being in another party. The language of the statute forbids a construction extending its provisions to any other person than the owner of the'land. The general charge requested by the defendant should have been given.

Whenever á bill of exceptions is signed by the presiding judge in accordance with the 'provisions of the statute, it becomes a part of the record on appeal, notwithstanding the appeal may have been sued out and a super-sedeas bond executed before such signing was had. If the bill of exceptions had been omitted by the clerk in making out the transcript, no one can doubt but that upon an application or motion a certiorari in 'such case would have been awarded by this court for the purpose of completing the record by sending up the bill of exceptions. We do not think there is any merit in appellee’s motion to strike the bill of exceptions in this case.

The judgment of the circuit ‘court must be reversed and the cause remanded.