Opinion
Hearing Granted by Supreme Court May 26, 1927.
Appeal from Superior Court, Los Angeles County; Albert Lee Stephens, Judge.
Action by E. L. Brenot against the Southern Pacific Railroad Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.
COUNSEL
Louis P. Boardman and Philip C. Boardman, both of San Francisco, for appellant.
W. I. Gilbert, of Los Angeles, for respondents.
OPINION
WORKS, P. J.
This is an action for damages occasioned by the alleged negligence of the defendants. Plaintiff was the owner of six mules, five of which were killed and one of which was rendered worthless by being run down by one of defendant’s trains. Defendants had judgment, and plaintiff appeals.
Points arising on the appeal are presented upon the findings of the trial court. It was found, among other things, that defendants, at the time the mules were run down, were engaged in operating a railroad over a certain strip of land, which strip had been conveyed by deed to one of defendants as a right of way by two men of the name of Porter; that by the terms of the grant the grantee was required "to construct and maintain a good and substantial fence on each side of said strip of land and right of way; that said defendant did thereafter," and before the accident to appellant’s mules, "construct and maintain such fence *** as required by said grant"; that at the time of the accident appellant, "as successor in interest by leasehold" of one of the Porters, "was in the possession and useful occupation of certain lands lying close to, but not bordering upon, the said right of way *** and which lands belonged to" Porter "at the date of said conveyance by him *** of said right of way and constituted a portion of the lands through which said right of way had been granted"; that at the time of the accident to the mules the city of Los Angeles, having acquired the right to construct a certain aqueduct across the right of way of respondents, while "in the course of the work of constructing said aqueduct *** by and with the knowledge and consent of" respondents, "and with their aid and co-operation, *** did remove a large portion of said fence from the southerly line of said right of way, and did also remove a cattle guard from said right of way, leaving the northerly line *** entirely fenced, and leaving the southerly line of said right of way and the railroad tracks thereon unfenced and open and without guards *** and without any protection against the entry of stock thereon; that the aid and co-operation of" respondents " *** in constructing said aqueduct consisted particularly of the work of removing said cattle guard and shifting said railroad tracks and maintaining the same *** for the passage of trains during the course of said work"; that appellant was at the time the owner of the six mules, of the aggregate value of $1,800, "which were on his said premises," confined in a corral in which "they had been impounded for the night by" appellant; that they broke therefrom "and wandered out and along for a mile or more upon" a certain road "to the point where said road formerly crossed said right of way and railroad tracks, at which point they had often been driven across said right of way and railroad tracks to a pasture beyond, and entered upon said right of way and railroad tracks *** through the opening made and left unguarded, *** in the fence so previously constructed and maintained along the southerly line of said *** right of way"; that the mules then proceeded "along the railroad tracks to a point where the right of way was fenced on both sides and where there was a precipitous rise in the ground on one side of said railroad tracks and a sharp decline on the other"; and that at that point they were struck by the locomotive of a freight train of respondents, "rounding a curve just beyond in said railroad tracks," with the result already stated.
The present action is an old one; the complaint having been filed practically a year before the amendment to section 485 of the Civil Code (St. 1915, p. 1281), which is now in effect. Before the amendment, the section read, in part:
"Railroad corporations must make and maintain a good and sufficient fence on either or both sides of their track and property. In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless it occurred through the neglect or fault of the owner of the animals so killed or maimed."
Because of the finding of the trial court that the land of which appellant was lessee lay close to, but did not border upon, the right of way of respondents, appellant may not recover under this section as it formerly stood. It has been directly decided (Barbee v. Southern P. Co., 9 Cal.App. 457, 99 P. 541) that the relief afforded by the enactment may be resorted to only by a proprietor occupying lands abutting upon a right of way.
There are many cases in other states holding, under the general law of negligence, that a recovery may be had from a railroad company under such circumstances as existed here. Respondents, after having constructed their fence along both sides of their tracks, it will be observed, removed a portion of the structure on one side, thus providing a means of ingress to the tracks, there being no means of egress therefrom except through the break which they had made. It seems that in this state, before section 485 was amended and under the opinion in the case above cited and other adjudications referred to in it, one whose animals crossed intervening lands on the way from his property to a railroad right of way and were there injured or killed, under the circumstances above stated, might not have recovered for the loss suffered. The remedy allowed by the section seems to have been exclusive.
Appellant contends, however, that he is entitled to recover because of the breach by respondents of their covenant, in the deed by which they acquired the right of way, to erect and maintain a fence along the strip acquired. Granting for the sake of argument, without deciding, that the covenant was one running with the land, and that there is no legal objection against appellant, as a lessee and not a holder of title, availing himself of the covenant, we think relief must be denied him on other grounds. It is obvious that the covenant was made for the purpose of preventing ingress of livestock to the right of way from the property of the Porters from which it had been segregated or set apart by the grant. The contiguity of location which must have been contemplated by this purpose has been destroyed. This is evident from the finding of the trial court that the leasehold of appellant did not border upon the right of way but lay close to it. There was no finding as to the ownership of the land lying between the leasehold and the right of way, or as to the nature of the use to which it was being put, and as to those matters, under familiar rules of law, we are bound to make all possible assumptions which will uphold the decision of the trial court. Let us assume, then, that the intervening strip had been condemned as a right of way for a public highway which extended along the railroad right of way and across the entire body of land formerly owned by the Porters, thus entirely segregating the latter right of way from the entire tract on that side, and that at the time of the accident to the mules the public road had been built and was being used by the general public. Would not appellant be in the same situation with others of the general public if his mules emerged from the leasehold, got upon the public road, and thence upon the railroad right of way through the breach in the fence? We think he would. The covenant having been made for the purpose of insuring that livestock of the Porters or of their assignees should not emerge from their lands and thus enter, immediately, upon the right of way, we think it cannot be held to protect appellant from a loss occasioned by the entry of his mules upon the railroad right of way from a public highway. No authority is presented to us upon this question, and we know of none.
Judgment affirmed.
We concur: CRAIG, J.; THOMPSON, J.