Illinois Cent. R. Co. v. McGowan

• Decision Date: 06 April 1908
• Docket Number: 13,196
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. HUGH A. MCGOWAN

46 So. 55

92 Miss. 603

ILLINOIS CENTRAL RAILROAD COMPANY v. HUGH A. MCGOWAN

No. 13,196

Supreme Court of Mississippi

April 6, 1908

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

McGowan appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Judgment reversed and cause remanded.

Mayes &amp Longstreet, for appellant.

Exactly what is the extent of the "suitable crossings" which the statute, Code, § 4058, requires a railroad company to make and maintain over its tracks for necessary plantation roads? That is to say, where does the crossing begin and where does it end? Is it such a crossing as begins with the actual railroad structure on the one side of the track and ends with the actual railroad structure on the other? Or is it such a crossing as must begin at the extreme limit of the railroad right of way although it may be one hundred feet from the center of the track on the one side and runs to the extreme end of the right of way, although it may be a hundred feet from the center of the railroad track, on the other side?

What is the exact meaning of the expression employed in that provision of "necessary plantation road"? In other words does the statute mean, and mean only, that the plantation road constructed shall be such a road as is necessary to the use and enjoyment of the plantation itself? Or does it mean such a road as being on a man's plantation he can throw open to the public and to all sorts of traffic, and still make the railroad company maintain it in good order as a plantation road?

The trouble of which McGowan complains was not a trouble existing upon the railway track; nor was it a trouble existing on the railroad embankment; nor was his trouble on the approach, considering the approach to be the dump or fill by which the climb was made up to the level of the railway track. His trouble and complaint is about a mud hole which is in the plantation road down at the foot of the embankment where the approach begins but still within the limits of the railroad right of way.

In other words, we have here a complaint for the application of the statutory penalty on the simple ground that in the plantation road which approaches the crossing point of the railway track, there is a mud hole, and McGowan's claim, to put it in simple form, is that the railway company must not only furnish him with a suitable crossing over its track and embankment, but also must work and keep in order his little plantation road from side to side of the entire theoretical right of way.

That is not the meaning of this statute. The statute is to be strictly construed because it is a highly penal statute. Railroad Co. v. Morrell, 78 Miss. 446, 28 So. 824; Railroad Co. v. Anderson, 76 Miss. 582, 25 So. 295.

Within the meaning of the statute, what is a necessary plantation road? We grant that it means such a road as is necessary or convenient to the owner of a plantation to the use and enjoyment of his plantation; we grant that he has a right to such a crossing for his plantation road as would enable him to haul any of the products of his plantation backward and forth from one side to the other, or haul any supplies needed on his plantation. But such was not the case presented here.

McGowan agreed and consented that this road and this crossing should be used by persons who were not working on his plantation and who were not handling his plantation products, and who had no connection with his plantation. He undertook to turn it into a common neighborhood road, to all intents and purposes. He himself undertook to haul wagons loaded with lumber and with wood to and from a saw mill in his vicinity. He authorized outsiders to use his road commonly, and amongst other things, to haul wagons loaded with logs for saw mill supply. He consented to this condition of things; he consented to this extraordinary use of the road which the evidence shows directly produced and brought about the condition of things of which complaint is made.

The statute does not require, we submit, that on every plantation or on every little piece of land like this which is bisected by the railroad (McGowan really only had two acres on the east side) the railroad company shall on the demand of the owner, maintain a road adapted for logging and lumber hauling and mill use, and all the variant and burdensome uses of a neighborhood. Johnson v. Railway Co., 96 Minn. 316.

Robert Powell, for appellee.

It is not denied that with the knowledge of the railroad company, the crossing for several months was practically impassable for the plantation crossing or any other purposes.

It is not denied that a trifling outlay in bridging the ditch at the foot of the embankment over the barrow pit made by the appellant would remedy the trouble, but appellant's contention is that the owner having committed the unpardonable sin of accommodating his neighbors with a passage over his crossing forfeited forever any right to ever afterwards demand of the railroad company the performance of its statutory duty of maintaining the crossing.

To this we reply that the railroad company with full knowledge made no objection. That the hauling was of lumber to be shipped at a station on defendant's line, to-wit Segars and was for the railroad company's direct benefit; that the crossing could have been repaired by the railroad company at a trifling expense and that by such repairs it would have only done that which it should have done in the first instance; provided a covered passage for the flow of water along the side of this embankment on the east side as they did on the west side.

If the theory of the appellant, that because appellee permitted others to pass over the crossing bars him from recovering, is true, then how much crossing will do so and for how long a time; where will you draw the line? There is no such a defense mentioned in the statutes and after diligent search, we find no adjudicated case supporting appellant's contention. The contention of the railroad company that it was only required to make a suitable crossing over the track and that this duty did not extend to the edge of the right of way would seem to be without merit, because the owner of the plantation could not go upon the right of way of the railroad company to construct or repair the crossing.

Garrard Harris, on the same side.

Relative to the erroneous idea advanced in the brief of appellant, that the railroad crossing consists merely of the actual crossing of the tracks, it would defeat the manifest intent of the statute were the court to adopt so narrow a view. The crossing contemplated by law certainly means one which is susceptible of being conveniently used, and is suitable from terminus to terminus; and if either terminus is too short and the approach so deep as not to be conveniently or suitably usable, then it is the duty of the railroad company to comply with the law, even though it take the full width of the right, of way to give the proper slope.

It is admitted by appellant that a plantation road is such a road as is necessary or convenient to the owner of a plantation to the use and enjoyment of his...