I concur in the judgment of reversal, but I do not think the third amended complaint is uncertain as to the particular negligence upon which plaintiffs count. They charge that the defendant failed to fence its track and that it ran down and killed cattle of plaintiffs that had strayed upon the track. The charge of carelessness and negligence in running over the cattle, though unnecessary, does not make the pleading any less certain as to the grounds of the action.
There is, however, what I deem a more substantial fault in the complaint. To maintain an action under the statute the land which the railway company neglects to fence must be the property of the owner of the cattle. The plaintiffs here do not allege that the land was their property or the property of either of them, but only that it was occupied and controlled by them. Instead of alleging the material and essential fact, they merely alleged that which is in conclusive evidence of such fact. Their complaint is also defective in failing to show that the cattle strayed upon the track at a point where the same passes through or along the property occupied by them.
As to the right of a lessee to maintain an action under the statute, I have no doubt that his estate is sufficient for the purpose, though he would be bound, no doubt, by any waiver on the part of his landlord of the right to have the land fenced. There is in this case, however, not only a failure to allege that the land in question was the property of plaintiffs, but also a failure to prove tenancy under any person having title to the premises.
Hearing in Bank denied. *Page 521