[17] I concur in the majority opinion in so far as the damages to the cattle is concerned but dissent to any damages allowed for the loss of hogs.
[18] The majority opinion correctly states that Sec. 141 [66-141], Title 66 O.S. 1961, applies to trespassing cattle but not to trespassing hogs.
[19] Sections 145 [66-145] and 146 [66-146], Title 66 O.S. 1961, which are fully set forth in the majority opinion outline the duties of railroads in fencing against trespassing swine. It is these two sections of the statute that directs me to write this short dissent.
[20] I am of the opinion that the holding in the case of St. Louis S.F. Ry. Co. v. Higgs, 42 Okla. 171, 141 P. 10, is controlling and decisive on this phase of the case. This case has never been overruled and is still the law. In that case we held where, in an action for killing a hog by a train, there was no proof that plaintiff constructed a hog fence on the adjoining land or served notice on that railroad company to construct a hog-proof fence pursuant to Sections 145 and 146, supra, he could not recover.
[21] There is no allegation in plaintiff's petition, or proof offered during the trial, that the above referred to sections of the statute were followed either by plaintiff or his predecessor in title.
[22] The evidence discloses that plaintiff never gave the defendant notice of the necessity of a hog wire fence. There is no evidence that anyone who ever owned the land gave defendant notice that a hog wire fence was being built on the premises.
[23] The majority opinion states that:
"The railroad fence having been erected prior to the time plaintiff acquired the property, no further notice to the railroad was necessary of his intention to continue using the property for pasturing swine."
[24] I am of the opinion that the majority opinion is erroneous in this respect because such statement is not in line with the statutory requirements pertaining to Notice.
[25] Since the judgment for the loss of the swine is only a small part of the principal judgment, I am of the opinion that we should affirm the judgment, but require a remittitur for that part of the judgment allowed for the loss of the swine.
[26] I am authorized to state that JACKSON, V.C.J., and BERRY, J., concur in this dissenting opinion. *Page 313