22 S.E.2d 735 | Ga. Ct. App. | 1942
1. In those counties where the stock law has been adopted ("no-fence" counties) it is the duty of owners of stock to keep them in enclosures protected by lawful fences, and cattle at large in such a county are trespassing animals.
2. In a "no-fence" county, such as the county here in question, the railroad company is not required to keep its right of way safe for trespassing animals by a fence or otherwise.
3. The railroad company is not liable for the death of animals which escaped from their owner's premises through a broken or insufficient fence, and strayed onto the right of way, at which place they ate poison on the vegetation along the right of way in a "no-fence" county, where the owner knew that such vegetation would be or had been poisoned.
4. The right of way of the railroad company was in no sense an attractive nuisance because of the alleged tempting odor and flavor of the killed poisonous vegetation, the maintenance of which would make it liable for the injuries sustained by trespassing cattle.
Recovery is sought because of a dangerous statical condition of the premises, and not because dangerous active operations were being carried on (active negligence). Atlantic Coast Line R.Co. v. O'Neal,
There are some counties in Georgia known as "no-fence" counties, and others known as "fence" counties. In the former the stock law has been adopted as provided in Code §§ 62-501 et seq. Such is the kind of county in which the alleged injury in the instant case occurred, and in such a county it is the duty of the owner to fence his cattle, that is, the owner of the cattle is bound, at his peril, to keep them off the lands of other people. Code § 62-601. In the "fence" counties the stock law has not been adopted, and it is the duty of the owners of land to protect their premises and crops by fencing against animals which are allowed to roam at large. Harvey v. Buchanan,
In counties where the stock law has been adopted, it is theduty of the owner of the cattle to keep them in an enclosure
protected by lawful fences, and cattle at large in such a county are trespassing animals. Harvey v. Buchanan, supra. It is undisputed in this case that the cattle were on the defendant's right of way in a no-fence county without license. If so, they were there wrongfully. How can the plaintiff separate his case from the wrong done by the cattle? If the cattle were at fault it was because the *287
owner was at fault in not restraining them. He was bound to do so at his peril. He did not restrain them, and it follows that he can not demand compensation for the injury to them. GeorgiaRailroad c. Co. v. Neely,
The right of way of the railroad company was in no sense an attractive nuisance because of the alleged tempting odor and flavor of the killed and poisoned vegetation, the maintenance of which would make it liable for injuries sustained by trespassing cattle. To illustrate: in this State cotton is commonly sprayed with a dangerous chemical known as calcium arsenate to kill the boll weevils (destroying insects) thereon. If, in a "no-fence" county, the cattle break out of pound and come in contact with the sprayed cotton and eat the sprayed vegetation, the farmer who sprayed the cotton is not liable to his neighbor because the cows break out of the pasture and go over to his field and eat the vegetation and are poisoned thereby. If it is said that cotton is not one of the most attractive foods to cattle, to illustrate further, suppose the farmer's crop is on land in a "no-fence" county adjoining the pasture of another, and instead of cotton there is growing thereon green rye or oats, probably the most palatable natural food known to cattle, and the rye or oats are attacked by destroying insects, and the farmer applies poison to the rye or oats to destroy the insects, and this poison gives them a much more attractive odor and flavor, and the cattle break out of the pasture adjoining the same and go into such field of rye or oats and eat thereof, and are poisoned and injured therefrom, can the owner of the field be held liable on the theory of an attractive nuisance? We think not.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.Georgia Railroad c. Co. v. Churchill,
113 Ga. 12 (38 S.E. 336 ); Atlanta West Point R. Co. v. Hudson,2 Ga. App. 352 (58 S.E. 500 ); Seaboard Air-Line Ry. v. Parish,16 Ga. App. 632 (85 S.E. 950 ); Weatherington v. G. S. F. R. Co.,17 Ga. App. 584 (87 S.E. 844 ); Keiley v. Bristol,30 Ga. App. 725 (119 S.E. 334 ); *288 Pollard v. Walton,55 Ga. 353 (190 S.E. 396 ), and the other cases cited by the plaintiff are differentiated by their facts from this case. The property owner, the railroad company, is not liable, under the allegations of the petition, for injuries to the trespassing animals, and the judge did not err in sustaining the general demurrer.