Gulf & Ship Island Railroad v. Ellis ( 1904 )

Whitfield, C. J.,

delivered the opinion of the court.

There may be cases in which it would be the duty of a railroad company to construct and maintain more cattle guards than one where the railroad enters upon, and one where the railroad makes its exit from, an inclosed tract of land. The statute does not specify the number. There might be a very large body of land, lying on both sides of the railroad track, many thousand acres in extent, the property of one owner; and this body of land might be subdivided into half a dozen cultivated farms, and interspersed between them might be half a dozen pastures, and the cultivated land might be divided from the pastures by cross fences intersecting the railroad. In such cases, doubtless, it would be the duty of the railroad company to construct and maintain proper cattle guards where each of such cross fences intersected the railroad track. Of course this qualification must attach even in such cases — that is to say, that the subdivision should be made in good faith, and not simply to make a case for penalties against a railroad company. But the difficulty with appellee’s case is that no such state of facts is shown by this record. So far as this record discloses, there is just one body of land involved, one hundred and fifty acres in extent, around where the railroad enters upon and leaves the inclosed land. And the whole of this land on both sides of the railroad track is pasture land. Somewhere about the middle of the pasture, the railroad, for the convenience of the appellee, constructed a crossing, never used as a wagon road, but intended simply for passage of the cattle from one part of the pasture to the other over the railroad track. At the place where this crossing was, the railroad also erected cattle guards, and it is the northernmost one of these two interior cattle guards which is complained of here as insufficient. So far as this record discloses, the, northernmost and southernmost cattle guards are sufficient. There is no proof whatever that the cattle guard at the extreme northern end of the pasture is not entirely sufficient. Judging from the brief of appellee, it would seem that the purpose was to have shown this cattle guard to have been insufficient, but there is no such proof. Counsel for appellee insist that the declaration must show what is claimed. Granted; but the declaration must be supported by proof, and the only proof of any insufficiency-in any cattle guard in this case is as stated above.

Reversed and remanded.