Johnson v. Oregon Short-Line R. Co.

• Decision Date: 05 December 1900
• Citation: 7 Idaho 355,63 P. 112
• Parties: JOHNSON v. OREGON SHORT LINE RAILWAY CO
• Court: Idaho Supreme Court

63 P. 112

7 Idaho 355

JOHNSON v. OREGON SHORT LINE RAILWAY CO

Supreme Court of Idaho

December 5, 1900

DOMESTIC ANIMALS.-The common-law rule that a man must confine his domestic animals to his own inclosure has never obtained in this state.

RAILROAD CORPORATION-FENCES-POLICE REGULATION.-The statute requiring railroad companies to fence their right of way where the same is contiguous to private property, is a police regulation, adopted to protect human life and property for the benefit of the general public, and not for the sole benefit of adjoining or contiguous land owners.

PRIVATE PROPERTY-HOMESTEAD ENTRY.-A homestead entry, after it is entered, is private property, within the meaning of the statute requiring railroad companies to fence their track when their right of way "passes through or along or abuts upon or is contiguous to private property."

ANIMALS KILLED-DAMAGES.-In an action to recover damages for horses killed by a railroad company, it was clearly shown that if the railway company had fenced its track, as required by the statutes that plaintiffs' horses would not have wandered upon the railroad track and been injured. Held, that a verdict for plaintiffs was proper and should not be disturbed.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Affirmed. Costs of appeal awarded to the respondents.

P. L Williams and F. S. Dietrich, for Appellant.

None of the land in question had passed to patent, or even to final proof, and the court properly instructed the jury that such land is not "private property." (Shiver v United States, 159 U.S. 491, 16 S.Ct. 54; 40 L. ed. 231; Kneen v. Halin, 6 Idaho 621, 59 P. 14.) The provisions of a statute requiring a railroad company to maintain fences on the sides of its track is a provision designed for the protection of adjoining owners; and that the provision may be waived by them; and that the effect of a waiver will be to exonerate the company from liability for injuries to cattle happening in consequence of the fence not being constructed according to the requirements of the statute. (Pierce on Railways, 344; Redfield on Railways, 373; Hurd v. R. etc. R. R. Co., 25 Vt. 116; Tombs v. R. & S. R. R. Co., 18 Barb. 583; Jackson v. Rutland R. R. Co., 25 Vt. 150, 60 Am. Dec. 246.)

Winters & Guheen, for Respondents.

The laws of Idaho make possessory rights and claims real property, and lands are coextensive with real property. (Idaho Rev. Stats., sec. 16, subd. 2.) The term "property," as applied to lands, comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract --those which are executory as well as those which are executed. (King v. Goetz, 70 Cal. 236, 11 P. 656; Soulard v. United States, 4 Pet. 511, 7 L. ed. 938.) A statute of a state imposing a duty on a railroad company to fence its track is a police power, and is for the benefit of the public, and not the adjoining land owners only. (Elliott on Railroads, secs. 1182-1190.) The weight of authority is that where the animals are wrongfully on the adjoining premises from which they escaped to the company's track, the company is liable. (Elliott on Railroads, sec. 1190; Missouri etc. R. R. Co. v. Roads, 33 Kan. 640, 7 P. 213; 23 Am. & Eng. R. R. Cas. 33; Patrie v. Oregon Short Line Ry. Co., 6 Idaho 448, 56 P. 82; Stimpson v. Union P. Ry. Co., 9 Utah 123; 33 P. 369.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This action was brought by the respondents to recover from the appellants the value of seven head of horses which the appellant's train of cars ran over, mangled and killed. The case was tried to a jury, which found a general verdict in favor of the plaintiff for damages in the sum of $ 340. The jury also found the following special verdict: "We, the jury in the above-entitled cause, find as follows upon the special questions submitted to us: Q. 1. Did the horses in question come upon defendant's track or right of way, last before they were struck, from government land, or from land, entry, or claim of some private person? A. 1. Private or entered land. Q. 2. If you answer that the horses last came upon defendant's track or right of way from the land, claim, or entry of a private person state the name of such person. A. 2. Gibson. Q. 3. From which side of defendant's right of way did the horses last come upon the track before being killed? A. 3. Northeast. Q. 4. About where (describe where) the horses last came upon defendant's track? A. 4. Gibson, and followed track to place of killing. Q. 5. Were any of defendant's trainmen negligent or careless in handling or managing the train in question? A. 5. No negligence. Q. 6. If you answer number 5 'Yes,' state which one of said trainmen. A. 6. . Q. 7. If you answer number 5 'Yes,' state in what respect or how such trainmen were careless or negligent. A. 7. . J. B. Hicks, Foreman."

Appellant specifies three errors, to wit: (1) "The action of the court in overruling its demurrer"; (2) "the action of the court in denying its motion to strike"; (3) "the action of the court in overruling appellant's motion for a new trial." The first paragraph of the complaint alleges the corporate capacity of the appellant. The second paragraph is as follows: "That at all the times when, and at all the points where, the acts of negligence and damage hereinafter set out and complained of were committed and occurred, the track, right of way and property of the defendant company passes and then passed through and along and abutted upon and was contiguous to private property, such that the defendant company then was and is required by law to make and maintain a good and sufficient fence on both sides of its track and property, but that said defendant has at all times failed, neglected and refused to make or maintain a good or any fence on both or either side of its said track, property, or right of way, where the same passes and passed through said private property, except for a very short distance on the north side of its said track; that said defendant company never paid to the owners of said land, or to anyone, any price or reward for, or cost of, making or maintaining any such, or any fence; that the plaintiff Enoch Johnson then and there was, and now is, the owner of, and in the actual possession of, the north one-half of the north one-half of section 3 in township 9 south, of range 40 east of Boise meridian, in said Bannock county, the same being a part of the said private lands through which the said track, property, and right of way of said defendant company passes and did pass as aforesaid, and the horses of plaintiffs hereinafter more particularly described, were at the time, as hereinafter mentioned, grazing upon said land of said plaintiff Enoch Johnson by his consent and permission." The third paragraph of the complaint, after particularly describing said horses and alleging their value, then avers: "And which horses, and each of them, casually, on said date, and without any fault of the plaintiffs or either of them, but by reason of the failure, neglect, and refusal of the defendant company to securely fence the said track and property as required by law, as hereinbefore set out, strayed in and upon the track and grounds occupied by the railroad of said defendant company, at a point near the center of the north half of section 3 in township 9 south, of range 40 east of Boise meridian, in said Bannock county, and where the said line of road of the said defendant company passes through the said lands of the plaintiff Enoch Johnson." The complaint then avers that the defendant, through its servants and agents, ran its locomotive and cars against and over the said horses, and there destroyed and killed said horses, to the damage of plaintiff in the sum of $ 415. And for a second cause of action the plaintiffs, after reiterating the first three paragraphs of the complaint, further allege as follows: "That the line of the track of said defendant company at the said point where the said horses came upon the said track is and was almost straight, there being no curves or cuts to obstruct the view of the enginemen and trainmen for several miles in either direction, and the said enginemen and trainmen could, with reasonable diligence, observe and see the said horses a sufficient distance from said train to have prevented striking or injuring the same, but the said agents and servants of said defendant company negligently, carelessly, and recklessly, and without any reason therefor, so handled, managed, and ran said train, cars and locomotives as to run and chase the said horses, and each of them, along and upon said track of defendant company for about one mile, and ahead of said train, and then ran said locomotive and cars against, upon, and over the said horses, and each of them, except the said brown mare, which was thereby maimed and bruised so as to absolutely ruin the said mare, and as a result thereof she is of no value, all of which is to the damage of plaintiffs in the sum of $ 415."

To the complaint the appellant filed a demurrer upon the grounds that it did not state a cause of action; that neither the first nor second causes of action stated facts sufficient to constitute a cause of action; that paragraph 2 in the first cause of action is ambiguous and uncertain, in that it does not clearly show whether defendant's right of way passed through or abutted upon private property, or that it was the duty of the defendant to fence both sides of its right of way at the point or points in question--and pointed out other particulars in which it claimed that said complaint was uncertain. This demurrer was overruled by the court, and this action of the court is the basis...