* Corpus Juris-Cyc. References: Railroads, 33Cyc, p. 316, n. 15; p. 317, n. 26 New; On duty of railroad company to keep its cattle guards in condition, see annotation in 36 L.R.A. (N.S.) 998; L.R.A. 1915B, 134; I.R.C.L. 1181; 1 R.C.L. Supp. 357; 5 R.C.L. Supp. 63. This is an action brought under section 4058, Code of 1906 (section 6686, Hemingway's Code), to recover the statutory penalty of two hundred fifty dollars for a failure to construct and maintain proper stock gaps and cattle guards where the track of the appellant railroad company passes through the inclosed land of the appellee, and also to recover two hundred fifty dollars actual damages to the plaintiff's crops caused by the depredation of stock and cattle thereon. There was a verdict and judgment for the plaintiff for the statutory penalty and also two hundred fifty dollars actual damages, and from this judgment the railroad company has prosecuted this appeal.
The land involved in this controversy lies in the northwest quarter of section 22, township 7, range 20 west, in Lawrence county, Miss., and the appellee owns all the northeast and southwest quarters of this quarter section, except the parts thereof that belong to the railroad company. The appellant's railroad enters this quarter section on the southern boundary thereof at the corner between the southeast quarter and the southwest quarter of the quarter section; this corner being in the center *Page 423 of the track. The railroad's right of way is one hundred feet wide, thus making the said right of way extend fifty feet west from the said southeast corner of the southwest quarter of said quarter section. The railroad runs in a general northeasterly direction through this quarter section, and consequently its right of way passes out of the said southwest quarter thereof a short distance north of the southeast corner of this forty acres; the portion of the right of way which lies in the said southwest quarter being in the form of a triangle in the southeast corner of this forty acres. As the said right of way continues in a northeasterly direction through the southeast quarter of the northwest quarter, it leaves a triangular piece of land in this forty acres, which is west of the right of way and in the northwest corner thereof, and which contains approximately five acres. At the time the appellant purchased its right of way through this forty-acre tract, it also purchased this triangular piece of land; the description in the deed reading as follows:
"The strip of land one hundred feet wide, being fifty feet on each side of the center line of the railroad of said company, as the same is now surveyed and to be located across the following described lands situated in Lawrence county, to-wit: Southeast quarter of northwest quarter and the northwest quarter of southwest quarter, section 22, township 7, range 20 west; and all that part of the southeast quarter of northwest quarter lying west of said right of way containing in all five and ninety-five one-hundredths acres more or less."
As the appellant's right of way continues in a northeasterly direction through the northeast quarter of northwest quarter of said section 22, it leaves a considerable acreage in this forty lying west of the said right of way. When the appellant purchased its right of way across this forty-acre tract, from the appellee's predecessor in title, it also purchased all that portion of said forty acres which lies west of the right of way, the description in the deed conveying the same being as follows: *Page 424
"The strip of land one hundred feet wide being fifty feet from the center line of the railroad of said company, same is now surveyed and to be located across the following described land situated in Lawrence county, Mississippi, to-wit: Northeast quarter of northwest quarter and southwest quarter of northwest quarter, section 22, township 7, range 20 west, and also all that part of the northeast quarter of northwest quarter lying west of the above-mentioned right of way. It is further agreed that the said M.L. Polk shall build and maintain a fence along said right of way between the railroad and his property."
The statute upon which this suit is based is section 4058, Code of 1906 (section 6686, Hemingway's Code), which reads as follows:
"It is the duty of every railroad company to construct and maintain all necessary or proper stock gaps and cattle guards where its track passes through inclosed land; and to make and maintain convenient and suitable crossings over its track for necessary plantation roads. For any failure so to do, the railroad company shall be liable to pay two hundred and fifty dollars, to be recovered by the person interested. A person owning or having an interest as cropper or tenant in land in said inclosure shall have a right of action under this section, whether the land of such person is entered or traversed by said track or not; and this section shall apply to all inclosed land, whether said land is or may be situated in a county or district where the stock law is or may be in force or not. But such penalty shall not be cumulative, and only one recovery shall be had for each failure."
In order for the penalty prescribed by the section to be recovered, the right of way and track of the railroad company must either pass through inclosed land of the claimant, or the person claiming the penalty must own, or have interest as cropper or tenant in, land in a common inclosure through which the track of the railroad company passes. The facts in the case at bar do not *Page 425 bring it within either of the conditions necessary to sustain a recovery. The track of the appellant railroad company does not, within the purview of this statute, pass through any of the inclosed land of the appellee. The appellee's land lies adjacent to, alongside of, and fronts on, one side of the railroad company's right of way, but at no point does the appellee own land upon both sides of the railroad track, or does the track pass through inclosed land belonging to the appellee.
The testimony shows that there is a fence around all of the northwest quarter of the said section 22, except on the north boundary line thereof, across the one hundred-foot right of way and the acreage which the appellant company owns west of and adjoining this right of way. In the cases of Railroad Co. v.Spencer, 72 Miss. 491, 17 So. 168, and Grace v. Gulf Chicago R. Co. (Miss.), 25 So. 875, it was held that a proper cattle guard is one extending across the entire width of the right of way, and if it can be said that, in the construction of proper cattle guards, it is the duty of a railroad company to extend a fence or protection to the farthest limits of land owned by it adjacent to and adjoining its right of way, although such land is not actually occupied or used, or in any manner useful, for railroad purposes, then the lands of the appellee are within a common inclosure such as would entitle him to maintain an action for this penalty. With the exception of section 4092, Code of 1906 (section 6721, Hemingway's Code), which authorizes railroad corporations to enter upon, acquire, and enjoy a right of way of not exceeding one hundred feet in width across any lands belonging to the state, we have no statute that limits the width of a right of way that a railroad company may acquire or use to one hundred feet, but it does not follow from this that all lands owned by a railroad company which are adjacent to the right of way actually occupied and used by such company shall be considered a part of the right of way within the purview of this statute. The deeds under which the appellant company acquired *Page 426 its right of way through this quarter section, and also the acreage adjoining, designates the width of the right of way as being one hundred feet, and there is no evidence that any part of this acreage adjacent to the designated right of way, which the appellant owned, was occupied or used, or in any way useful, for railroad operations or purposes, or that it was in any sense a part of the right of way. We do not think the statute requires the appellant to extend a cattle guard or protection across the vacant lands owned by it which are adjacent to its right of way, thereby completing a common inclosure around the entire quarter section, and consequently the peremptory instruction requested by the appellant should have been granted.
Reversed, and judgment here for appellant.
Reversed.