Gulp & Ship Island Railroad v. Chapman , 102 Miss. 778 ( 1912 )

Smith, C. J.,

delivered the opinion of the court.

This is an .appeal from á judgment awarding appellee the sum of two hundred and fifty dollars alleged to be due him. under section 4058 of the Code on account of' appellant’s failure to construct and maintain the necessary stock gaps and cattle guards where its right of way-passes through his inclosed land.

One of the reasons assigned for a reversal of the judgment rendered below is that the court erroneously sustained a demurrer to a plea in bar, which alleged, in substance, that the deed by which appellant obtained its-right of way across the land from a former owner thereof, through whom appellee now claims by mesne conveyances, contained the following covenants and warranties “It is further understood and agreed that the grantors herein, in consideration of the aforesaid sum, relinquish and acknowledge full and complete satisfaction for any and all damages of whatever nature or kind sustained by them in laying out and constructing said railroad through the aforesaid land, and for any and all failures to place,, construct, and maintain plantation road crossings, stock gaps, and cattle guards thereon. It is further understood and agreed that the grantors herein are to construct and maintain a good substantial wire fence on both sides of said railroad company’s right of way across said land, said fence is to be constructed out of posts placed eight feet apart and with plank one inch by six inches and with barbed wire and the same is to be placed so as to make a good and substantial fence and amply sufficient to turn any and all stock. Said railroad company is further relinquished and relieved from placing any stock gaps, cattle guards, or other plantation road crossings or any other crossings via said right of way across said land.”

The ground upon which it is sought to uphold the action of the court in sustaining the demurrer is that these covenants are not such as run with the land,- and therefore are not binding upon appellee. It will be observed that this plea sets up two. distinct defenses: (1) A release of appellant by a former owner of the land, from whom it obtained its right of way, from any obligation “to construct and maintain plantation road crossings*, stock gaps, and cattle guards;” and (2) a covenant of a former owner of the land “to construct and maintain a good, substantial wire fence on both sides of said railroad company’s right of way across said land, . . . amply sufficient to turn any and all stock.” The first of these defenses presents no question of a covenant running with the land. The effect of section 4058 of the Code, by which is imposed upon a railroad company the duty to construct and maintain stock gaps and cattle guards where its right of way passes through the land of another, is simply to burden such right of way with an easement or servitude for the benefit of the owner of the land through which it passes; the right of way being the servient, and the land through which it passes being the dominant, tenement. Such an easement or servitude may be released by deed from the owner of the dominant tenement to the owner of the servient tenement, and, when so released, it ceases thereafter to be an appurtenance of such dominant tenement. 10 Am. & Eng. Ency. Law (2 Ed.), 432; 14 Cyc. 1191. The fact that this servitude is created by statute is immaterial. It is created primarily for the benefit of the landowner, and this benefit we know of no reason why he should not waive. Madison v. Mo. Pac. Ry., 60 Mo. App. 599.

In Railroad Co. v. Spencer, 72 Miss. 491, 17 South. 168, the court held that, in order for a railroad company to comply with the statute, its cattle guards must “extend across the entire right of way, unless the adjoining landowner has waived the requirement by contracting to maintain fences up to a shorter one. ’ ’ If the landowner can relieve the railroad company of a portion of the burden imposed upon it by this statute for his benefit, he can, of course, relieve it of the whole burden. Since appellant holds its right of way free from burden imposed upon it by the statute of constructing and maintaining stock gaps and cattle guards, it becomes unnecessary for us to determine whether or not the covenant by appellee’s grantor to build and maintain the fence runs with the land.

For the error in sustaining the demurrer to this plea, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.