Baker v. Southern California Railway Co.

—This action was brought in the justice’s Court to recover the sum of one hundred and thirty dollars, the value of a cow and steer alleged to have been killed by a train on defendant’s road. An answer was filed in which it was alleged, among other things, that the determination of the action necessarily involved the question of title to, or possession of, real property, and the cause was accordingly certified to the superior court under the provisions of section 838 of the Code of Civil Procedure. On the appeal from the first trial, a motion was made to dismiss the appeal, on the ground that the court had no jurisdiction. This court held that the transfer of the cause to the superior court was proper, and that that court had

On the merits of the appeal in that case, among the questions ■considered was the alleged error in overruling the demurrer to the complaint, as amended after the transfer to the superior ■court. And it was held that said complaint was uncertain as to whether the plaintiff’s cause of action was founded upon negligent acts of the defendant in the management of its train, or ■upon the failure of the defendant to fence its track or right of way. (Baker v. Southern Cal. Ry. Co., 114 Cal. 501 .)

After the cause was remanded the complaint was again amended. In said last amended complaint it is alleged that the cattle were grazing “upon land occupied and controlled by plaintiffs adjoining said defendant’s railway, and the said cattle then and there, without the fault of the plaintiffs, or either of them, ■casually strayed upon the ground and track occupied by the defendant’s railway, in the county of San Diego, state of California. That defendant then and there, by its agents and servants, and not regarding its duty in that behalf, so carelessly and negligently managed its cars and locomotives that the same ran upon and against the said cattle and killed and destroyed the same, to the plaintiffs’ damage and injury in the sum of ■one hundred and thirty dollars. That at the point where said cattle were killed as aforesaid, defendant’s railway was not on the last-mentioned date, nor is the same now, fenced on either side thereof.” It is very evident that this complaint is subject to the same uncertainty as the one considered by this court on the former appeal. It cannot he ascertained therefrom whether the plaintiff relies upon the allegation of negligence in the management of the train, or upon the allegation of possession and control of the premises through which the railroad passes, and that the same was not fenced.

It appears from the transcript that upon the trial of the cause the plaintiff relied upon the allegation of occupation and control by the plaintiff of the premises adjoining the said defendant’s railway, and that the same was not fenced. The law creating a duty on the part of the railroad company to fence is con- ■

It would seem from the reading of this section that it provides a penalty for killing or maiming cattle or domestic animals on the line of the road which passes through or along the property of the owner thereof, without regard to the manner in which the train may be operated (provided it be without neglect or fault of the owner of said animals), unless the company fence in its line of road. If the railroad company pay the owner of the land through which the railroad runs the price or cost of making or maintaining a fence as therein provided, then the company is relieved and exonerated from all claim for such damages, and, on the other hand, the owners of such animals are responsible for any damage or loss which may accrue to the company from such animals being on the railroad track resulting from want of such fence. The whole provision seems to-be in the interest of the owner of the land through or along which the railroad runs.

There is no evidence, however, appearing in the transcript connecting this link in the chain of evidence with the source of title, or with any title. It was not shown that Bryant Howard, as trustee or otherwise, had title or was ever in possession of the premises, or that his grantee, the Combination Land Company, went into possession of said premises under its deed, or that the said W. F. Carter, who purchased from said Combination Land Company, "went into possession under his deed, or in fact was ever in possession. William G-. Baker, one of the plantiffs, testified: “I occupied this lot 20 as agent of my wife” —the wife claiming to be owner of the stock that was killed —and the right to occupy or pasture said lot was obtained by parol from W. F. Carter’s brother, and as his agent, two or three years prior.

The result is an utter failure of evidence to show that the-plaintiffs were tenants or licensees of the owners of the land along or through which the railroad ran.

The judgment and order denying a new trial are reversed and the cause remanded.

Harrison, J., concurred.

—I concur in the judgment of reversal, but I do not think the third amended complaint is uncertain as to the particular negligence upon which plaintiffs count. They charge that the defendant failed to fence its track ■and that it ran down and killed cattle of plaintiffs that had strajred upon the track. The charge of carelessness and negligence in running over the cattle, though unnecessary, does not make the pleading any less certain as to the grounds of the action.

There is, however, what I deem a more substantial fault in the complaint. To maintain an action under the statute the land which the railway company neglects to fence must be the property of the owner of the cattle. The plaintiffs here do not allege that the land was their property or the property of either of them, but only that it was occupied and controlled by them. Instead of alleging the material and essential fact, they merely alleged that which is inconclusive evidence of such fact. Their complaint is also defective in failing to show that” the cattle strayed upon the track at a point where the same passes through or along the property occupied by them.

As to the right of a lessee to maintain an action under the statute, I have no doubt that his estate is sufficient for the purpose, though he would be bound, no doubt, by any waiver on the part of his landlord of the right to have the land fenced. There is in this case, however, not only a failure to allege that the land in question was the property of plaintiffs, but also a failure to prove tenancy under any person having title to the premises.

Hearing in Bank denied.