There was no evidence tending to show negligence in keeping up the cattle guard after its installation, and no evidence of damage to plaintiff after that time. The affirmative charge, as requested, should have been given, and its refusal was error.

The statute in the Code of 1907, section 5513, is materially different from the section as it appeared as section 3480 of the Code of 1896, and construed in Central of Ga. Ry. Co. v. Carroll, 163 Ala. 84, 50 So. 235. In the last-named section railroad companies in this state were required to erect cattle guards upon their railroads in this state and keep them in repair, when the owner of the land through which the roads ran should make demand and show the necessity of the guards. In section 5513, Code 1907, railroad companies are required to put cattle guards and crossings for plantation roads upon such railroad, etc., when the owners of the land or those inpossession shall make demand upon them or their agents, and"show that such guards are necessary to prevent the depredationof stock upon his land, and the crossings are necessary for theproper use of the land." The railroad company not being required to do this at common law, and the plaintiff's rights being dependent upon a penal statute, which must be strictly construed (Central of Ga. Ry. Co. v. Carroll, supra), it will be observed that the requirement to build cattle guards is not without limitations: (1) The cattle guards and crossing must be plantation roads, either present or prospective. (2) There must be a demand by the owner or person in possession, accompanied by a showing that such guards are necessary to prevent depredation of stock upon his land, and that the crossings are necessary for the proper use of the land. Until this appears by the pleading, the plaintiff has not presented a good complaint, and where the pleading is sufficient, if not followed by adequate proof, would not entitle plaintiff to recover.

Again, the proper action is not for negligently failing to put in the cattle guard, but is an action for damages to plaintiff's crops, by reason of the failure of defendant to erect the cattle guard, as required by the statute, after due notice, or for the penalty as prescribed by statute.

The demand made upon defendant in this case does not follow the statute, and is therefore not sufficient.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded. *Page 339