This action was brought by the plaintiffs in the justice’s court to recover the sum of one hundred -and thirty dollars, the value of a cow and a steer alleged •to have been killed by a train on defendant’s road.
*505An answer was filed in which it was alleged, among other things, that the determination of the action necessarily involved the question of title to, or possession of, real property, and said cause was accordingly certified to the superior court under the provisions of section 838 of the Code of Civil Procedure.
Thereafter, on the twenty-second day of January, 1895, an order was made by said superior court on motion of the plaintiffs, and without notice to the defendant, granting plaintiffs leave to file an amended ■complaint, and the complaint, upon which this action was tried in said court, was thereupon filed. Afterward, on February 1, 1895, the defendant, upon notice duly given, moved the court to strike out said amended complaint, and to vacate the order under which the same was filed, basing said motion upon various grounds stated therein.
This motion was denied, the defendant demurred to said amended complaint, the demurrer was overruled and an answer filed; the cause was tried by the court without a jury, and findings and judgment were for the plaintiffs, and this appeal is from the judgment and from an order denying defendant’s motion for a new trial.
Respondents contend that the amount in controversy being less than three hundred dollars, and no question as to the title or possession of real estate being raised ■on appeal, this court is without jurisdiction, and that the appeal should be dismissed.
Respondents moved this court in December last to dismiss this appeal upon the ground that it had no jurisdiction to entertain or consider it. That motion was denied, and the opinion of the court then rendered thereon is a sufficient answer to the contention of respondents now made herein. (See Baker v. Southern Cal. Ry. Co., 110 Cal. 455.)
The plaintiffs should have given notice of their motion for leave to file an amended complaint, but as the motion, for aught that appears in the record, should *506have been granted had due notice of the motion been given, respondents are not prejudiced.
It is quite true the jurisdiction of the superior court must appear on the face of the pleadings certified to it by the justice of the peace, and any amendment of the pleadings which would show that the justice had jurisdiction to try the case would doubtless justify the court in remanding it; but the amended complaint in this case shows, upon its face, that the title or possession of real property was necessarily involved in the action, and therefore the jurisdiction of the superior court was not affected. We see no reason to limit the power of the superior court to permit amendments in any other respect to the same extent as it might do if the action had been commenced therein. Said transfer was made under section 838 of the Code of Civil Procedure, which provides, among other things, that, “From the time of filing such pleadings or transcript with the clerk, the superior court shall have over the action the same jurisdiction as if it had been commenced therein.”
The case of Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143, cited by appellant, is broadly distinguishable from this case, and does not conflict with what we have said touching the power of the superior court to permit an amended complaint to be filed. In that case, after it had been certified to the district court, the defendant was permitted to withdraw his verified answer, which alleged that the legality of the license was necessarily involved in the case, and to demur to the complaint.
This court held the withdrawal of the answer to be an abandonment of the only issue which gave the district court jurisdiction, and in'that connection remarked:' “The action should have been tried or determined in the district court upon the pleadings in the justice’s court.” The amendment made in this case did not eliminate the facts upon which the right to a transfer of the case to the superior court depended, and hence could not affect its jurisdiction;
*507In Arroyo etc. Co. v. Superior Court, 92 Cal. 47, 27 Am. St. Rep. 91, it was held that the jurisdiction exercised by the superior court, under the provision of section 838 of the Code of Civil Procedure, is original and not appellate, and, quoting from Santa Cruz v. Santa Cruz R. R. Co., supra, said: “The superior court had jurisdiction only because the pleadings had before the justice, and filed with its clerk, presented the issue of the legality or the validity of the tax or impost.” In this case the issue as to the possession of the plaintiff was as effectual to show jurisdiction in the superior court as the allegation of ownership, and was not such an amendment as affected its jurisdiction.
The defendant demurred to the amended complaint: 1. For want of facts sufficient to constitute a cause of action; and 2. For uncertainty; and said demurrers were overruled.
We think the demurrer should have been sustained. It is alleged in the fourth paragraph of the complaint that the cattle, “ without the fault of plaintiffs or of either of them, casually strayed upon the track and ground occupied by the defendant’s railway at Sorrento Station.”
The fifth paragraph alleges “that defendant then and there, by its agents and servants, and not regarding its duty in that behalf, so carelessly and negligently ran and managed its cars and locomotive that the same ran on and against the said cattle and killed and destroyed the same”; and proceeds to allege that the defendants then and there killed and destroyed said cattle and took and carried away the s.ame, and converted said cattle to its own use.
The sixth paragraph alleged “that at the point where said cattle were killed, taken, and carried away as aforesaid, defendant’s railway is not fenced on either side thereof.”
The seventh paragraph alleges “ that at and near the point where said cattle were taken and carried away as aforesaid there is a public road or highway transecting *508said defendant’s said railway, and that at the time aforesaid, when said cattle were killed, taken, and converted as herein stated, the said defendants did not ring, or cause to be rung, the bell attached to the defendant’s said locomotive at or near said public road or highway, or at the time of crossing the same.”
It will be observed that the complaint nowhere alleges that it was the duty of the defendant to fence its road at the place where the cattle were killed. We do not hold that in a complaint which does not indicate that the cattle were killed at a place where the company would not be required to fence their track, that it would be necessary for the plaintiff to allege such duty.
Section 485 of the Civil Code provides that railway companies must make and maintain a good and sufficient fence on either or both sides of their track and' property. The same section further provides that where the railroad corporation pays to the owner of the land, through or along which its road is located, an agreed price for making and maintaining such fence, a railway company is relieved and exonerated from all claims for damages arising out of the killing or maiming any ani- - mals of persons who fail to construct and maintain such fence. The latter provision, generally speáking, must be pleaded by the defendant in defense of the action, as it will be assumed that it was the duty of the railroad company to have kept and maintained the fence where the injury occurred, unless something in the complaint" indicates that at said point it was not their duty, under' said provision of the code, to fence their road. It is true the section above mentioned does not make any exceptions as to stations or highway crossings, but the necessity of the case, as well as other provisions of the code, show that the railroad company are not only un- ' der no obligation to fence their road at particular point3( but have no right to do so. As, for example, they can-' not fence on the sides of their road across a public highway transecting it; nor will it be presumed that all" roads or avenues to a station are to be kept closed, or ; *509that the station or station grounds are to be fenced off, so as to prevent access thereto.
Under the allegations of the complaint that the cattle “strayed upon the track and ground occupied by the defendant’s railway at Sorrento station,” and that “at or near the point where said cattle” wrere killed there is a public highway crossing the railroad, and that no bell was rung at said crossing, the inference or presumption is that, at the place where the cattle strayed upon the road or were killed, not only no duty rested upon the defendant to fence its road, but that it had no right or authority to fence it.
Besides, the allegation in paragraph 6 “that defendant’s railway is not fenced” is an allegation of a condition existing at the time the amended complaint was filed—which was nearly a year after the cattle were killed—and, for aught that appears, the railway may-have been fenced at that time, though destroyed by fire or removed subsequently.
It is true that cattle may be negligently killed or injured at a place where there is no duty or obligation on the part of the railway company to fence its track, and the company be liable therefor. In the complaint before us there is a general allegation of carelessness on the part of the defendant in managing its cars and locomotive, but there are also in the complaint two specifications of particulars in which it is alleged the defendant was negligent, or of facts which it is contended constitute negligence; the one being that the railway is not fenced, and the other that defendant did not ring, or cause to be rung, a bell at or near said public road or highway, or at the time of crossing it. One of these points was included in defendant’s special demurrer, which, we think, should have been sustained, inasmuch as the complaint is uncertain as to whether plaintiff’s cause of action is founded upon the alleged negligent acts of the defendant in the management of its train, or upon the failure of the defendant to fence its track or right of way.
*510If the defendant so negligently managed its train that it would have been liable for killing the cattle at a place where they were not required to fence the road, and it were so alleged, a cause of action would be stated; but when the failure to fence, br the failure to ring the bell, are added as allegations of fact tending to show the liability of defendant, the complaint at once becomes un-' certain.
Besides, if the complaint be construed as alleging that the cattle were killed through the negligence of the appellant in managing its train at a place or point where it was not required to fence its track, the finding of the court would not be consistent with such allegation, since it is stated in the sixth finding, that the killing of the cattle was due to the negligence of the defendant in failing to fence its tracks, and in failing to ring its bell; and there is no finding of any other negligence on the part of the appellant. It may also be noted, in passing, that there is nothing to indicate that the property described in the fourth finding as that occupied by the plaintiffs .is the .property described in the complaint.
The judgment and order appealed from should be reversed with leave to the plaintiffs to amend their complaint if so advised.
Searls, C., and Vanclief, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, with leave to the plaintiffs to amend their complaint if so advised.
Harrison, J., Garoutte, J., Van Fleet, J.