Choctaw, Oklahoma & Gulf Railroad v. Deperade

Citations

• 12 Okla. 367

Syllabus

<p>~|. PROBATE COURT — Jurisdiction. The probate court of this territory has jurisdiction to try and determine actions for injuries to domestic animals growing- out of the negligence of a defendant railway company in failing to maintain a fence along its right of way, as required by sections 1047, 1048 and 1049 of the Laws of 1893.</p> <p>-.2. ACTION BY ABUTTING OWNER — Title Not In Dispute; In án action by the owner of lands abutting the right of way of a railroad company which has failed to maintain a fence as required by sections 1047, 1048 and 1049 of the Laws of 1893, the title to the real estate is not in dispute, the question of title is only incident to the qualification of the party to maintain the action.</p> <p>.-3. STATUTORY NOTICE — When Deemed to Have Been Waived. Where the. owner of a quarter section of land has the same fenced, with a good and sufficient fence, at the time when a railroad company constructs its road through such land, and the railroad company proceeds, without statutory notice, to construct a fence as required by sections 1047, 1048 and 1049 of the Laws of 1893, such railroad company will be deemed to have waived the statutory notice, and will be liable for injuries resulting from negligently allowing such fence to get out of repair.</p> <p>■4. MARKET VALUE — Erroneous Instruction. In an action for damages for injuries to domestic animals, where the allegation of value is denied by the defendant’s answer, and the only evidence offered on the question of value is the testimony of the plaintiff, who states that he is a farmer, and then proceeds to give his opinion of the value of the animals killed, all of which is done over the objection of the defendant, it is error for the court, in an instruction to the jury, to assume that the value of the animals killed is that testified to by the plaintiff, and to state to the jury in such instruction that if they find for the plaintiff they should assess the value of the animals killed at the s