McKenzie v. Powell

• Decision Date: 12 November 1942
• Docket Number: 29542.
• Citation: 22 S.E.2d 735,68 Ga.App. 285
• Parties: McKENZIE v. POWELL et al.
• Court: Georgia Court of Appeals

22 S.E.2d 735

68 Ga.App. 285

McKENZIE v. POWELL et al.

No. 29542.

Court of Appeals of Georgia, Division No. 1.

November 12, 1942

The plaintiff brought suit against the receiver of the railroad company for damages, alleging that the railroad company caused the death of five head of his cattle of the value of $415; that the railroad sprayed the right of way for a width of thirty feet with a chemical, poisonous to animals, for the purpose of killing the vegetation along the right of way that "when petitioner learned that said right of way had been poisoned with a most deadly poison to animals, and knowing that same constituted an absolute menace to any animal which might escape from his said pasture, and be attracted by the freshly killed and cured vegetation, with an attractive odor and the taste of freshly cured hay very much relished by cattle, he secured help and went around his pasture, examining all portions of the fence, trying to make sure that none of his cattle would be able to break through the fence enclosing his pasture and on to the said freshly cured hay on the said railroad right of way"; and that the cattle were so attracted by the poisoned vegetation as to break through the fence onto the right of way and eat the vegetation. The defendant filed a general demurrer which was sustained. The plaintiff excepted.

Clarence E. Adams, of Danielsville, for plaintiff in error.

R Howard Gordon, of Danielsville, and John B. Gamble, of Athens, for defendants in error.

MacINTYRE Judge.

Recovery is sought because of a dangerous statical condition of the premises, and not because dangerous active operations were being carried on (active negligence). Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153, 178 S.E. 451; Leach v. Inman, 63 Ga.App. 790, 12 S.E.2d 103. There are some counties in Georgia known as "no-fence" counties, and others known as "fence" counties. In the former the stock law has been adopted as provided in Code, § 62-501 et seq. Such is the kind of county in which the alleged injury in the instant case occurred, and in such a county it is the duty of the owner to fence his cattle that is, the owner of the cattle is bound, at his peril, to keep them off the lands of other people. Code, § 62-601. In the "fence" counties the stock law has not been adopted, and it is the duty of the owners of land to protect their premises and crops by fences against animals which are allowed to roam at large. Harvey v. Buchanan, 121 Ga. 384, 49 S.E. 281; Thombley v. Hightower, 52 Ga.App. 716, 719, 184 S.E. 331. In a "no-fence" county, such as the one here in question, where the cattle are not allowed to roam at large, he who suffers his cattle to go at large takes upon himself the risk incident to it. Posey v. Maryland & Pa. R. Co., 16 Pa.Dist. & Co. R. 169. In other words, the risk here involved was on the plaintiff, unless the cattle were injured by wilful and wanton negligence. The petition does not allege any wilful or wanton negligence. On the contrary, the plaintiff had notice of the use of the poisonous substance, and there was no allegation of wilful and wanton negligence.

In counties where the stock law has been adopted, it is the duty of the owner of the cattle to keep them in an enclosure protected by lawful fences, and cattle at large in such a county are trespassing animals. Harvey v. Buchanan, supra. It is undisputed in this case that the cattle were on the defendant's right of way in a no-fence county without license. If so, they were there wrongfully. How can the plaintiff separate his case from the wrong done by the cattle? If the cattle were at fault, it was because the owner was at fault in not restraining them. He was bound to do so at his peril. He did not restrain them and it follows that he cannot demand compensation for the injury to them. Georgia Railroad, etc., Co. v. Neely, 56 Ga. 540 (that case refers to "fence" counties); Macon & Western R....