Walther v. Sierra Railway Co.

HENSHAW, J.—

This action was prosecuted against defendants under section 485 of the Civil Code, to recover damages for the killing of a mule. The plaintiff was the lessee of the owner of the land. He was awarded a judgment, from which defendants appeal. The single proposition which they here advance is, that the section above cited gives a right of action only to the “owner” of the land along or through which the railroad passes, to the exclusion of tenants and lessees.

In support of their contention appellants quote

Baker

v.

Southern California Ry. Co.,

110 Cal. 455, where it is said: “It will be noticed that by this section it is contemplated that the plaintiff must be the owner of the land through which the line of road passes. ’ ’ But herein the court was considering the sufficiency of the complaint filed in the justice’s court, which pleaded ownership, and the question as to what would constitute a sufficient ownership under the statute was not before it. This becomes apparent from the fact that the learned author of the opinion in

Baker

v.

Southern California Ry. Co.

also spoke for the court in the case of

King

v.

Southern Pacific Co.,

109 Cal. 96, where, discussing the case of

McCoy

v.

Southern Pacific Co.,

94 Cal. 568, involving the same section of the Civil Code, he said: “The

status

of plaintiff was held to be that of a mere licensee of the Boyd brothers, they being at all times in the actual possession of the land, and, for the purposes of the statute heretofore referred to, the owners thereof. ’ ’ The Boyd brothers were but the tenants of the owner. Again, appellants rely upon the language of this court in the same case upon another appeal, reported in 126 Cal. 516, where it is said, still referring to this section of the Civil Code: “The whole provision seems to be in the interest of the owner of the land through or along which the railroad runs.” But that decision further declared that, even if the section was broad enough in its scope to include a tenant or licensee, there was an utter failure of evidence to show that the plaintiffs were such tenants or licensees. If it