Barbee v. Southern Pacific Co.

HALL, J.

Plaintiffs upon the trial recovered judgment against defendant for the sum of $165, as damages for the killing of two bulls of plaintiffs by the' trains of defendant, and from the judgment defendant within sixty days from the entry thereof appealed.

The complaint is in two counts, the first of which sets out a cause of action under the provisions of section 485, Civil Code, for the killing of a bull, valued at $100, that entered upon the right of way of defendants through a defect or gap in the fence inclosing said right of way, and was there killed by a train of cars operated by defendant.

The action was brought in the justice court, but as the issues under the first count involved the right to the possession of land, the action was transferred for trial to the superior court.

(Baker

v.

Southern Cal. Ry. Co.,

110 Cal. 455, [42 Pac. 975].)

It is contended by appellant that the facts do not bring plaintiffs’ case within the benefits of section 485, Civil Code, and it is conceded by respondents that the responsibility for damage rests entirely upon the question whether the lands of respondents are within the provisions of said section.

Most, if not all, the states have enacted railroad fence laws. These laws vary in their terms and effect in the different states. In some they are regarded as police regulations, intended for the benefit and protection of the public generally, while in others they are regarded as providing for division fences, and intended for the benefit of the adjoining property owner only. (2 Thompson on Negligence, sec. 2047.)

This latter construction has been placed upon the law of this state.

(Baker

v.

Southern Cal. Ry. Co.,

110 Cal. 455, [42 Pac. 975];

Baker

v.

Southern Cal. Ry. Co.,

126 Cal. 516, [58 Pac. 1055];

Boyd