Birmingham Mineral R. Co. v. Parsons

• Decision Date: 22 July 1893
• Citation: 13 So. 602,100 Ala. 662
• Parties: BIRMINGHAM MINERAL R. CO. v. PARSONS.
• Court: Alabama Supreme Court

13 So. 602

100 Ala. 662

BIRMINGHAM MINERAL R. CO. v. PARSONS.

Supreme Court of Alabama

July 22, 1893

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by A. F. Parsons against the Birmingham Mineral Railroad Company to recover damages to plaintiff's crops, caused by the failure of defendant to erect and maintain proper cattle guards on its road, where it entered plaintiff's land. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint, as amended, contained three counts. The gravamen of the first count is that the damage was caused by the defendant's failure, on the plaintiff's demand, to construct proper stock gaps where its road entered upon and left the plaintiff's fields, and that the stock gaps which the plaintiff had constructed were so carelessly negligently, and unskillfully done that stock passed over them and caused the damage complained of. The gravamen of the second count is that, after the plaintiff's demand to erect stock gaps where its road entered upon and left plaintiff's land, the defendant so negligently and carelessly left open its said stock gaps, as constructed that stock entered upon plaintiff's land, and caused the damages complained of. The gravamen of the third count is that after the demand by the plaintiff the defendant negligently failed to put in stock gaps, of proper construction, and that, by reason of such failure, stock and cattle entered, through and by way of defendant's line of road, into the plaintiff's cultivated lands, where he had a crop, and caused the damages complained of. The defendant demurred to each of these counts, assigning to each count substantially the same ground of demurrer, which was, in effect, that at common law the defendant was not required to erect and maintain stock gaps where its road entered and left the plaintiff's lands, and that the statute approved December 11, 1886, (Acts 1886-87, p. 163,) creating such requirement is unconstitutional and void. The demurrer to the second count also proceeded on the idea that, if the statute referred to was constitutional, it created no duty on the part of the appellant to close its stock gaps. The demurrer to each of the counts was overruled, and the rulings of the court thereon constitute the only assignments of errors.

Hewitt Walker & Porter, for appellant.

W. R Houghton, Francis D. Nabers, and Kennedy & Hickman, for appellee.

HARALSON J.

The demurrer to the complaint, which was overruled, presents a single question for our consideration,-that of the constitutionality of the act of the legislature approved December 11, 1886, (Acts 1886-87, p. 163.) It is entitled "An act requiring railroads to build, and keep cattle and stock guards in order, upon their respective lines of roads." Its first section is: "That all railroads within the territorial limits of the state of Alabama, shall be required to put in cattle or stock guards, upon their respective lines of roads, and keep the same in order, whenever the demand is made upon them, or their agents or employes, by the owners of the land through which said road passes, that said cattle or stock guard is necessary to prevent the depredation of stock upon their farms." The second section provides that on and after the passage and approval of the act, as to all stock passing over or through cattle guards upon any line of railroads in this state, and committing depredations and damages to the owners of the land, the company shall be liable for the full amount of damages proven to have been sustained by the party damaged, and all costs accruing in the collection of said damages, which damages can be recovered by suit in the justice or circuit courts of Alabama, where such damages were committed: provided, that the railroad company can only be required to construct cattle guards whenever said company's road enters the field or upon the premises of any person, or where the premises, or any portion of the same, are exposed by reason of said road entering upon them, or running through them.

1. It is well understood that railroad companies are not bound, by any principle of the common law, to fence their roads, make cattle guards, or erect any other barrier or stay against the intrusion of stock upon their roads or right of way, and are not liable for injuries happening merely for want of such erections. 7 Amer. & Eng. Enc. Law, pp. 906, 912; 1 Ror. R R. 614; Railroad Co. v. Lyon, 62 Ala. 74. Whenever a company is under obligation to fence its right of way, or erect cattle guards, it is by virtue of a contract or statute. On the other hand, it is equally well settled that acts of incorporation of railroad companies are subordinate to the general police regulation of the state, and that the requirement to fence their rights of way, and erect and maintain cattle guards, falls legitimately within legislative authority. As is well said in American Union Tel. Co. v. Western Union Tel. Co., 67 Ala. 32: "The police power of a state is a most important power, essential to its very existence, and has been declared by the supreme judicial interpreter of the federal constitution to embrace 'the protection of the lives, health, and property of her citizens, the maintenance of good order, and the preservation of good morals;' and the legislature cannot, by any contract, divest itself of the power to provide for these objects." Beer Co. v. Massachusetts, 97 U.S. 25; Van Hook v. City of Selma, 70 Ala. 361; Railroad Co. v. Baldwin, 85 Ala. 619, 5 South. Rep. 311; 7 Amer. & Eng. Enc. Law, 907. The unconstitutionality of the act we consider is insisted on, "first, because it requires the railroad to erect cattle guards whenever demand is made upon it, by the owners, that the cattle or stock guard is necessary to prevent the depredation of stock upon their farms, thus making the landowner the sole judge of the necessity, and from whose decision the railroad has no appeal." This objection relates especially to the first section of the act. The criticism cannot be sanctioned. This is a mere option which the statute gives the owner of the land. The guard-if, and when, constructed-is for his benefit alone. The public has no interest in it, further than the general interest every good citizen feels that every other person shall be protected in his rights of property; and of what detriment can it be to the railroad that the owner is permitted to exempt it from a duty which, without his exemption, would be absolute, whether the owner needed or desired the cattle guard or not? If the statute had simply required the companies to erect...