Sections 6238 and 6239 of Sandels & Hill’s Digest are as follows: “It shall be the duty of all railroad companies organized under the laws of this state, which have constructed, or may hereafter construct, a railroad which may pass through or upon any enclosed lands of another, whether such lands were enclosed at the time of the construction of such railroad, or were 'enclosed thereafter, upon receiving ten days’ notice in-writing from the owner of said lands, to construct suitable and safe stock-guards on'either side of said enclosure where said railroads enter said enclosure and to keep the same in good repair.”
“Any railroad company failing to comply with the requirements of the preceding section shall be liable to the person or persons aggrieved thereby for a penalty of not less than twenty five dollars nor more than two hundred dollars for each and every offense, to be collected by civil action in any court having ¡jurisdiction thereof.”
We need consider only one question presented by this record to-wit: Can the notice required by this statute be given before there is any enclosure on the land over which the railroad runs? The unequivocal language of the statute indicates that notice before there is an enclosure would be premature. The owner has no right to give notice to the railway company to erect cattle-guards until he has an enclosure through which the railroad runs. It matters not, we think, that he completes his enclosure after notice to the company before the expiration of ten days. This would not be in complianee with the statute, for how could one give notice “to construct suitable and safe stock-guards on either side of said enclosure where said railroad enters said enclosure” when there was no enclosure in fact in existence. The statute is in derogation of common right, is penal in its nature, and should be strictly construed. (Reversed and remanded for new trial.