O.C.G.A. § 46-8-129 (2019)

Annotations

JUDICIAL DECISIONS Meaning of word ‘‘owner’’. - The word ‘‘owner’’ has no technical meaning, and, being nomen generalissimum, should be construed liberally in favor of the parties whom it is the duty and intention of the legislature to protect. Hardin v. Chattanooga S.R.R., 113 Ga. 357, 38 S.E. 839 (1901); Elberton & E.R.R. v. Campbell, 46 Ga. App. 203, 167 S.E. 215 (1932). Land possessor under bond for title held not ‘‘owner’’. - One in possession of land under bond for title with part of purchase-money paid was not ‘‘owner’’ of such land within the meaning of former Civil Code 1895, § 2243 (see O.C.G.A. § 46-8-129). Hardin v. Chattanooga S.R.R., 113 Ga. 357, 38 S.E. 839 (1901). Son of owner may not maintain action. - For a breach of duty imposed by former Civil Code 1895, § 2243 (see O.C.G.A. § 46-8-129) the owner of the lands only was entitled to maintain an action; a son of the owner cannot recover. Florida C. & P.R.R. v. Judge, 100 Ga. 600, 28 S.E. 379 (1897). Tenant may not maintain action. - The

right of action given by former Civil Code 1910, § 2699 (see O.C.G.A. § 46-8-129), et seq., was a statutory right, and applies only to the owner of the land, and not to a tenant. Louisville & N.R.R. v. Nanny, 137 Ga. 607, 73 S.E. 1052 (1912). Landlord may not maintain action for crop damage. - A landlord cannot recover in a suit for damages against a railroad company for failure to keep in good repair a stock guard, where the sole damage alleged is to the crop of a tenant. Louisville & N.R.R. v. Nanny, 137 Ga. 607, 73 S.E. 1052 (1912). Abutting landowner may not maintain action. - Former Civil Code 1910, § 2699 (see O.C.G.A. § 46-8-129) wasintended for the protection of landowners, whose lands are intersected by a railroad right of way, and not for the benefit or protection of the owners of land abutting on a railroad right of way. Louisville & N.R.R. v. Butler, 140 Ga. 717, 79 S.E. 776 (1913). Railroad bound to maintain guard on dividing line of two owners. - Where a railroad company builds a cattle guard on the

dividing line between adjacent land of different owners, it was bound to maintain it, and former Civil Code 1910, § 2699 (see O.C.G.A. § 46-8-129) did not require the landowner to give the railroad company 30 days notice to repair the same. Alabama G.S.R.R. v. Dawkins, 143 Ga. 415, 85 S.E. 343 (1915). Guard must embrace entire width of right of way. - The cattle guard required by former Civil Code 1910, § 2699 (see O.C.G.A. § 46-8-129) was intended to protect the adjacent land from the trespass of live stock going over the railroad right of way; and the contrivance must be sufficiently extensive to embrace the entire width of the right of way. Alabama G.S.R.R. v. Dawkins, 143 Ga. 415, 85 S.E. 343 (1915). Proper instruction as to good and sufficient cattle guard. - Former Civil Code 1910, § 2699 (see O.C.G.A. § 46-8-129) required a railroad company to build and maintain ‘‘good and sufficient’’ cattle guards on each side of every public road where the railroad crosses it. It was inaccurate to instruct the jury that the character of the cattle guards should be such as first-class roads use in the construction of their road; but such inaccuracy of instruction will not require a new trial in every case. Louisville & N.R.R. v. Plemons, 139 Ga. 67, 76 S.E. 562 (1912). Plaintiff must show necessity for guard. - In a suit against a railroad company by a landowner for a failure to erect cattle guards as required by former Civil Code 1895, § 2243 (see O.C.G.A. § 46-8-129), it was incumbent upon the plaintiff to show upon the trial that such cattle guards were necessary to protect plaintiff ’s lands. Alabama G.S.R.R. v. Fowler, 104 Ga. 148, 30 S.E. 243 (1898). No necessity to show notice where guards built voluntarily. - It is immaterial whether the notice to build cattle guards required by former Civil Code 1910, § 2699 (see O.C.G.A. § 46-8-129) was given, where they were voluntarily built by the railroad company without such notice, at a public road, or private way established pursuant to law.

Savannah & A. Ry. v. Hart, 27 Ga. App. 743, 110 S.E. 410 (1921). Duty of railway company to build proper and effective cattle guards. - Where railway company has voluntarily built cattle guards it is estopped from saying that they were not erected at a private way established pursuant to law. Having built the cattle guards ‘‘for the convenience of the plaintiff’’ as shown by the defendant’s evidence, it was the duty of the railway company to build proper and effective ones and to keep them in good repair. Savannah & A. Ry. v. Hart, 27 Ga. App. 743, 110 S.E. 410 (1921); Elberton & E.R.R. v. Campbell, 46 Ga. App. 203, 167 S.E. 215 (1932). Sufficiency of complaint. - To recover the penalty for failure of a railroad company to build and maintain good and sufficient cattle guards as provided for in former Civil Code 1910, §§ 2699 and 2700 (see O.C.G.A. § 46-8-129 and 46-8-130), the plaintiff ’s complaint must allege such facts as bring it within the provisions of this law. Gill v. Atlanta, B. & Atl. Ry., 24 Ga. App. 780, 102 S.E. 457 (1920). Sufficiency of notice. - A notice served upon a railroad company under former Civil Code 1893, § 2243 (see O.C.G.A. § 46-8-129), calling upon the company to erect a cattle guard between two named land lots, ‘‘where your line of road crosses said line,’’ sufficiently described the point where it was desired that the cattle guard be erected to require a compliance therewith by the railroad company, the notice otherwise meeting all requirements. Fenn v. Georgia N. Ry., 116 Ga. 942, 43 S.E. 378 (1903). Service of notice improper where not made on agent. - This being a suit for a penalty under former Civil Code 1895, § 2244 (see O.C.G.A. § 46-8-130), and it appearing from the evidence that the chief clerk on whom service of the notice was made was not an agent or officer of the defendant, the court committed no error in awarding a nonsuit. Smith v. Southern Ry., 132 Ga. 57, 63 S.E. 801 (1909).

RESEARCH REFERENCES Am. Jur. 2d. - 65 Am. Jur. 2d, Railroads, §§ 92, ?. C.J.S. - 74 C.J.S., Railroads, § 392 et seq.

ALR. - Failure to fence as rendering railroad company liable for damage to or by

livestock after leaving right of way, 24 ALR 1057. Liability of railroad company where fence or cattle guard becomes ineffective because of snow, 26 ALR 679.

Sufficiency as to type of cattle guards at public or private crossings, 75 ALR 936.