123 P. 694 | Mont. | 1912
delivered tbe opinion of the court.
Plaintiffs’ complaint originally contained two causes of action — one for damages alleged to have been sustained by reason of the acts of the defendant in breaking their fence and entering upon their lands, and another for an injunction to prevent a repetition of such trespass. The parties own adjoining acre property in Deer Lodge county, with a line fence between, which fence was constructed by the plaintiffs. In their second cause of action they allege “that on the fourteenth day of January, 1911, the defendant forcibly broke and entered upon the plaintiffs’ land and took down and injured and destroyed a portion of said line fence owned by plaintiffs, and repeatedly trespassed upon and crossed over the lands owned by plaintiffs; * * * that plaintiffs repaired said fence so taken down and removed and injured by defendant, and thereafter at different times, the defendant again broke down and took down said fence belonging to plaintiffs, against plaintiffs’ protest, and defendant frequently repeated said action and threatens to continue to repeat said action in trespassing upon plaintiffs’land; * * * that such repeated trespasses of defendant would require a multiplicity of suits to restrain defendant from committing the same.” The answer of defendant to the second cause of action admits the ownership of plaintiffs’ lands; admits that they constructed and are the owners of the division line fence; admits that on January 14, 1911, defendant broke down, injured and destroyed the same; “admits that defendant willfully and forcibly broke down and took down said fence belonging to the plaintiffs, against the protest of plaintiffs, and admits that defendant frequently repeated said action and threatens to continue the said action”; but denies that he thereby trespassed or threatened to trespass upon plaintiffs’ land. As an affirmative defense he set forth that for ten years last past there has been a public road running through plaintiffs’ lands from east
1. It is contended that the second count of the complaint does not state facts sufficient to constitute a cause of action. The
2. The court found, inter alia, that on the fourteenth day ?f January, 1911, defendant “forcibly broke and entered upon plaintiffs’ land and broke down, injured and destroyed a portion of the fence owned by plaintiffs and went over and drove over plaintiffs’ land, without plaintiffs’ consent and without right, and thereafter’ the defendant again broke and destroyed a portion of the fence and went over and drove over plaintiffs’ lands without plaintiffs’ consent and without right, and defendant frequently went over and drove over plaintiffs’ land, and continuously did so to the damage of the plaintiffs * * *, and the injury so sustained by plaintiffs is irreparable, because the same is not susceptible of complete pecuniary compensation and cannot be estimated in money, and the said repeated trespasses would require a multiplicity of suits on the part of plaintiffs to recover damages from the defendants therefor,” etc.
The judgment is affirmed.
'Affirmed.
Rehearing denied May 10, 1912.