Kansas City, Memphis & Birmingham Railroad v. Spencer

Citations

• 72 Miss. 491

Syllabus

<p>1. Railboads. Cattle guards. Code 1892, \\ 3561. Police power.</p> <p>Section 3561, code 1892, requiring railroads to construct and maintain proper stock g'aps and cattle guards, is intended to secure safety of travel as well as the property rights of cattlepwners, and is a legitimate exercise of police power.</p> <p>2. Same. Cattle guards and crossings. Penalty. Single recovery.</p> <p>Under said section, requiring- cattle guards where the track passes through inclosed land, and the maintenance of suitable crossings for necessary plantation roads, providing that “for any failure so to do ” the company shall pay 55250, the penalty is not given for each failure. Only one recovery can be had for failure to maintain both cattle guards and crossings, if within one inclosure.</p> <p>3. Same. Suñt for penalty. Continuing 'right.</p> <p>But the right to sue is a continuing- one, and the penalty may be recovered as often afterwards as other instances of failure occur.</p> <p>4. Same. Warm, crossings. Suit for penalty. Plaintiffs title to land.</p> <p>In an action to recover the penalty imposed by l 3561, code 1892, on a railroad' company for failure to maintain crossings for necessary plantation roads, the character of plaintiff’s title to the land on either side of the track, whether in fee or as tenant at will, is immaterial.</p> <p>5. Same. Suit for penalty. Actual damages. Joinder of counts.</p> <p>Where a railroad company fails to maintain cattle guards as required by $ 3561, code 1892, the penalty prescribed and actual damages caused by such failure may be recovered in the same action.</p> <p>6. Same. Cattle guards. Sufficiency. Crossing right of toay.</p> <p>A cattle g-uard across the track, with a wing- or frame extending eight feet on either side and not across the right of way, does not meet the requirement of the statute. Such guards must extend across the entire rig-ht of way, unless the adjoining owner has waived the requirement by contracting to maintain fe