St. Louis & San Francisco Railroad Company v. Hale
| Decision Date | 18 March 1907 |
| Citation | 100 S.W. 1148,82 Ark. 175 |
| Parties | ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. HALE |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court; Frederick D. Fulkerson Judge; affirmed.
Judgment affirmed.
L. F Parker and W. J. Orr, for appellant.
The statute requiring railroad companies to construct cattle-guards is in derogation of the common law, and penal in its nature, and should be strictly construed. 67 Ark. 358; 59 Id. 356; 68 S.W. 879; 57 Ark. 16; 48 Id 493; 72 S.W. 574; 57 Ark. 330; 86 S.W. 764.
Service of notice under the cattle-guard statute must be personal service, and not merely service on an agent of the company. 68 Ark. 238; 60 S.W. 657; 68 Id. 879; 86 Id. 242; 87 Id. 610; 18 Barb. 393; 25 Id. 635; 13 Hun, 211; 69 F. 819; 49 Ia. 255; 79 Mo. 328; 141 U.S. 344. Wade on Notice, §§ 1334, 1335.
Plaintiff failed to show that he had a lawful fence around his lands. A lawful fence is necessary to make an inclosure; therefore appellee can not recover, for his lands must be inclosed. 55 S.W. 134.
S. S. Semmes, for appellee.
All proceedings under the Code shall be liberally construed, with a view to promote its object and assist the parties in obtaining justice. 59 Ark. 243; 65 Id. 199; Id. 521. Sec. 6271 of Kirby's Digest provides that notices to corporations may be served in the same manner as a summons in an action against it. It is sufficient to serve such notices on the station agent. 68 Ark. 238; Id. 548; 70 Id. 429; 71 Id. 133.
This is an appeal by a railway company from a judgment rendered against it in the circuit court of Mississippi County for a penalty of $ 200 for failing to construct stock gaps at two places where the railroad operated by defendant passed through inclosed land owned by plaintiff.
The first contention on part of the defendant is that it is only the lessee of the railroad, and not the owner thereof, and that the statute requiring railroad companies organized under the laws of this State to construct stock gaps in certain cases does not apply. But our statutes provide that any railroad corporation of another State leasing any railroad in this State shall become subject to all the regulations and provisions of law governing railroads in this State, and held liable for the violation of any such laws. Kirby's Digest, §§ 6732, 6743, 6757, 6758. These provisions put the defendant in the same situation, as the railroad company which first constructed the road, and any failure to obey the statute subjects it to the penalties pronounced by the statute. Russell v. St. Louis S.W. Ry. Co., 71 Ark. 451, 75 S.W. 725.
It is next said that the evidence shows that the fence inclosing plaintiff's lands was not a lawful fence within the meaning of the statute which provides that owners of horses, cattle and other stock that break into fields inclosed by fences of the kind specified in the statute shall respond in damages to the party injured. But we do not think that statute applies to this case, or that it is necessary that the inclosed land through which the railroad runs should be inclosed by a fence of the kind and dimensions specified in the statute defining "lawful fences." It is sufficient if the land through which the railroad runs is inclosed by a fence calculated to keep out stock of most kinds, whether it be, strictly speaking, a lawful fence or not. The evidence shows that the fence around the inclosure involved in this case was a good wire fence, though it did not have any plank on it, and in other respects was not strictly speaking a "lawful fence" under the statute in reference to inclosures. The uncontradicted evidence shows that this was inclosed land within the meaning of the stock-gap statute, and no prejudice resulted from the instruction of the circuit court on this point.
Lastly it is said that the notice to put in the stock gap was not served upon the proper person, and for that reason no penalty can be recovered. The notice was served on a station agent of the defendant company in the county where the action was brought. In Kansas City, P. & G. Ry. Co. v. Lowther, 68 Ark. 238, 57 S.W. 518, it was held that service of a notice of this kind could not be proved by the return of the officer who served it. This ruling was based on the absence of any statute requiring such notices to be served by officers or making the return of the officer evidence of service. The court called attention to the fact that the only provision on the subject was the one in the Code which provided that "the notices mentioned in the Code shall be in writing, and may be served by a sheriff, constable, coroner or marshal of a town or city, whose return thereon shall be proof of the service." Kirby's Digest. § 6267. The court said that this provision in the Code did not cover the notice required in the stock-gap statute, for this statute was passed long after the Code, whereas the section of the Code referred to was limited specially to notices mentioned in the Code. It will be seen by reference thereto that the decision in that case was confined to the question of proof of service. The court did not hold or intimate that a service of such a notice upon a station agent of the company was not sufficient. In fact, the return of the officer in that case showed that the service of the notice was made on the station agent. The agent denied that any notice was served on him, and the court held that the return of the constable was not competent evidence of the service. From the stress laid on the want of proof of service in that case we...
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