74 P. 840 | Cal. | 1903
This action was prosecuted against defendants under section 485 of the Civil Code, to recover damages for the killing of a mule. The plaintiff was the lessee of the owner of the land. He was awarded a judgment, from which defendants appeal. The single proposition which they here advance is, that the section above cited gives a right of action only to the "owner" of the land along or through which the railroad passes, to the exclusion of tenants and lessees.
In support of their contention appellants quote Baker v.Southern California Ry. Co.,
We entertain no doubt that the last-quoted sentence expresses the true construction of the section, and this construction is not only borne out by our own decisions, but is in harmony with the cases arising under like statutes in sister states. In the first place, it is to be observed that the section itself does not limit the right of action to the owner of the land. Its language is, that the railroad company is responsible for the injury it may occasion to domestic animals upon its line of road which passes through or along the property of the owner of the animals. The only word here requiring definition is the word italicized, and the question is what is the property in land which a man must possess to vest him with this right of action. In McCoy v. Southern Pacific Co.,
That a tenant has a property in land may not be doubted. The word as here used is interchangeable with estate. Immediately upon the commencement of the term, unless special reservation is made, the tenant succeeds to all the rights of the landlord that are annexed to the estate, so far as the possession *291
and enjoyment of the premises are concerned, and he may sue either the landlord or a stranger for any species of injury thereto that affects his estate. (Wood on Landlord and Tenant, p. 1300.) Elsewhere, as has been said, the decisions are uniform to the effect that the lawful occupant of the land may maintain this action, and, indeed, many of the cases go further, and upon the theory that the requirement to fence is an exercise of the police power for the benefit of the public generally, it is held that this action is open to any person suffering injury from the fault of the railroad company in this regard. (Norris v. AndroscogginR.R. Co.,
A motion by respondent to dismiss this appeal has been submitted. It has been deemed advisable, however, to decide the case upon the merits, and under the conclusion which we have reached a decision upon the motion to dismiss becomes unnecessary.
The judgment appealed from is affirmed.
McFarland, J., and Lorigan, J., concurred.
Hearing in Bank denied.