Kansas City, Memphis & Birmingham Railroad v. Jones , 73 Miss. 397 ( 1895 )

Woods, J.,

delivered the opinion of the court.

Section 3561, code of 1892, which requires of railroad companies, under heavy penalty, the construction and maintenance of all necessary or proper stock gaps and cattle guards where their tracks pass through inclosed land, and of convenient and suitable crossings over their tracks for necessary plantation roads, must be strictly construed, and its application confined to cases clearly within its purview. It will be observed that this section, in treating of one subject, makes provision for both cattle guards and plantation road crossings, and can only be invoked by those citizens whose lands are entered by the line of railway. No other person would be entitled to demand of a railroad company the construction and maintenance of suitable crossings for plantation roads, for, clearly, only the plantation owner is entitled to such crossings. With like certainty, reference being had to the entire section, it appears that cattle guards may be demanded only by the landowner through whose inclosed lands the track passes. The latitudinarian construction contended for by appellee’s counsel would entitle anyone whose lands were inclosed by any conventional or public fence to sue for and recover the statutory penalty in case of the failure of the railroad to construct stock guards or crossings for plantation roads, although the lands of such an one were not touched by the tracks of the railroad, but, in fact, lay miles away. But it is plain that the legislative purpose was not to protect the lands of a whole county or an entire supervisor’s district, and to confer upon every landowner or lessee of lands in the county or district, the right to sue for and recover the penalty in case of the railroad’s failure to erect guards or road crossings at the points where its tracks enter and leave county or district fence lines. The very terms employed in the statute confine the right of action to those whose lands are entered by the line of railway.

The appellee’s land is not entered by the railroad, not does it touch the same anywhere. The demurrer to the declaration was well taken, and should have been sustained.

The judgment ielow is reversed,, the demurrer sustained and the case dismissed.