Hardin v. Chattanooga Southern R. Co

• Decision Date: 27 April 1901
• Parties: HARDIN . v. CHATTANOOGA SOUTHERN R. CO.
• Court: Georgia Supreme Court

38 S.E. 839

113 Ga. 357

HARDIN .

v.CHATTANOOGA SOUTHERN R. CO.

Supreme Court of Georgia.

April 27, 1901.

RAILROADS—CATTLE GUARDS.

One in possession of land under a bond for title, with a part of the purchase money paid, is not the "owner" of such land, within the meaning of the act of November 11, 1889, imposing upon railway companies the duty of erecting and maintaining cattle guards at designated points along their lines of road.

(Syllabus by the Court.)

Error from superior court, Chattooga county; W. M. Henry, Judge.

Action by J. T. Hardin against the Chattanooga Southern Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

C. L. Odell, W. H. Ennis, and Denny & Harris, for plaintiff in error.

J. M. Bellah, and McHenry & Maddox, for defendant in error.

LUMPKIN, P. J. The complaint made in the present bill of exceptions is that the court below erred in dismissing on demurrer a suit instituted by Hardin against the railroad company. His action was based upon the provisions of sections 2243-2246 of the Civil Code, which relate to the duty of railroad companies to erect and maintain cattle guards, and prescribe what shall be the liability of such companies for failure to comply with the requirements therein mentioned. He sought to bring his case within the statutory law embraced in those sections by alleging in his petition, with respect to the ownership of "the lands to be affected by" the cattle guard therein referred to, "that petitioner is now, and was on or before October 9, 1899, in possession and control [of], and held under bond for title, with part of the purchase money paid, 60 acres of" a designated lot of land, through which the railroad of the defendant company ran, and which adjoined the premises of another named person, whose lot the railroad also traversed. One of the grounds of the demurrer was that the facts alleged in Hardin's petition did not show that he was "such owner of said lot of land" as the law embraced in section 2243 of the Civil Code contemplated. We think this point was well taken, and should control our decision upon the question whether or not the trial judge erred in dismissing the plaintiff's action. It has heretofore been definitely ruled that, "relatively to one who is not the owner of cultivated lands through which the track of a railroad company runs, such company is under no duty * * * to erect, keep, or maintain cattle guards for the protection of crops growing upon such lands, " but that, in view of the provisions of the act of November 11, 1889, now to be found in the sections of the Code above cited, "for a breach of duty imposed by that statute the owner of the lands only is entitled to maintain an action." See Railroad Co. v. Judge, 100 Ga. 600, 28 S. E. 379. It appeared in that case that the plaintiff "had been engaged in conducting a farm upon a tract of land owned by his father, that this farm was crossed by the track and right of way of the defendant company, " and that, because of its failure to erect and maintain proper cattle guards, "domestic animals of various kinds entered upon his crops and destroyed them." As he was not the owner of the tract of land in question, but, at best, a mere tenant of such owner, we, without difficulty, reached the conclusion that a general demurrer to his petition should have been sustained. Does Hardin, merely because he is in possession of land under a bond for title, with part of the purchase money paid, stand upon any better footing than would a tenant of the holder of the legal title? In other words, can Hardin logically be regarded the "owner" of the premises, in the sense in which that term is employed In the statute upon which he predicates his right to maintain his action? If so, then his vendor, who still retains the legal title, and under whom he holds actual possession of the land, would have no right to demand the protection afforded by law to "adjoining landowners" with respect to the erection and maintenance of...