24 Mont. 316 | Mont. | 1900
after stating the case, delivered the opinion of the court.
Appellant concedes the respondent’s ownership of the land, the appellant’s ownership of the sheep, and the value of the
To appellant’s objection that the complaint is insufficient, it is enough to say that the complaint contains all the averments necessary to the creation of a legal liability on the part of the appellant. It alleges ownership of the land in the respondent/ ownership of the sheep in' the appellant; the fact that they were herded and pastured on respondent’s land during a stated period of time; and that such pasturage was worth the amount stated in the complaint. From these facts, if proved the law creates an implied promise, and a legal liability, although the appellant’s cattle were wrongfully on the respondent’s land. (De La Guerra v. Newhall, 55 Cal. 21; Fratt v. Clark, 12 Cal. 89; Roberts v. Evans, 43 Cal. 380.)
The main contention of appellant is that no action lies, and no damages can be recovered, for trespass by animals on uninclosed lands; and in support of his' position appellant cites the cases of Smith v. Williams, 2 Mont. 195; Fant v. Lyman 9 Mont. 61, 22 Pac. 120, and many others of like tenor from' other states. It is to be observed that most, if not all, of the decisions to which appellant directs our attention rest upon statutory provisions the'same as, or similar to, section 3258, of the Political Code, which is as follows:
“If any cattle, horse, mule, ass, hog, sheep, or other domestic animal break into any enclosure, the fence being legal, as hereinbefore provided, the owner of such animal is liable for all damages to. the owner or occupant of the inclosure which may be sustained thereby. This section must not be construed so as to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law. ’ ’
The question now arises: To what extent have statutes like the one just cited limited the right of an owner, or of one in possession, of real, property, to recover for trespasses committed upon it? “Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close\ the words of thé writ of trespass commanding the defendant to show cause," — ‘‘‘Qúare clausum qu'erentis jregit. ’’' For every man’s
“Aman is answerable for not only his own trespass, but that of his cattle also; for if, by his negligent keeping, they stray upon the land of another (and much more if he permits, or drives them, on) and they there tread down his neighbor’s herbage, and spoil his corn, or his trees, this is a trespass for which the owner must answer in damages.” (Id. 211, 212.)
While admitting that such would- be the rights of respondent under the common law, appellant contends that the provisions of section 3258, Political Code-, which makes the owner of any animal named therein liable for all damage such animal may do by breaking into an inclosure surrounded by a legal fence, negative the right to sue for damages, where the premises are not inclosed by a legal fence; and that, in order to maintain an.action, it is necessary to allege and prove that the premises upon which the trespass was committed were inclosed by a lawful fence.
If, in the case now under consideration, the damage sustained by respondent had resulted from trespasses committed by cattle or sheep, or other animals named in the statute, lawfully at large and not under the direction or control of their owner, then appellant’s position would be sound. But the evidence in this case presents a different question. Under the conditions disclosed by the record, what rights had respondent? If appellant is right, the respondent, although his grass had been destroyed by the deliberate act of appellant, was without remedy; silent acquiescence was all that was left to him. If appellant is cor
Such was the contention in the case of Harrison v. Adamson, 76 Iowa, 338, 41 N. W. 34. In the opinion the court observed: “The allegations of the petition are to the effect that the defendant knowingly and willfully caused his cattle to be driven and kept upon plaintiff’s land. Surely, the owner of uninclosed prairie land is not deprived of his rights in it by any statute of the state in regard to fences, or which authorizes another to use it for pasturage against the owner’s will. If he may so use it, why may he not use it for cultivation?
A like contention as to the necessity of a fence, in order to give a right of action was made in the case of Powers v. Kindt, 13 Kan. 14, an action of trespass to recover for injuries committed by defendant’s cattle to growing crops of plaintiff. The court, in an opinion by Brewer, J., say: “It is insisted that, because the findings show that Kindt had no legal fence, or inclosure around his premises, he was not entitled to recover. But the court also finds that Power’s cattle were driven and herded upon the premises of Kindt against his wishes and consent, and while so driven and herded, destroyed the property as alleged; and as a conclusion of law from the various facts found, that Power’s was guilty of a wanton and willful want of care. This brings the case within the rule laid down in Larkin v. Taylor, 5 Kan. 433, 446. It is claimed that because the plaintiff’s in error employed herders to watch their cattle, and keep them off from other parties’ crops and premises, they could not be held liable where they would not have been held liable if they had simply turned them loose, and they had roamed upon Kindt’s premises, and done the damage
The case of Lazarus v. Phelps, 152 U. S. 81, 14 Sup. Ct. 477, 38 L. Ed. 363, an appeal from the circuit court for the Northern district of Texas, was much like the one now under consideration. The defendant in that action (as did the defendant in this) requested the court to charge that “the law is that the owner of stock is not required to keep them in an inclosure, or to prevent them from ranging on the land of others; and that the owner of land trespassed upon by cattle cannot recover from the owner of the cattle damages for the trespass, unless his land is fenced,” and further, “that to entitle the plaintiff to recover in this suit you must believe from the evidence that the plaintiff’s lands were fenced from those leased by defendant. If there was a common inclosure around the lands of plaintiff and those leased by defendant, and no fence separating such lands, then the plaintiff cannot recover. ’ ’ The court in its opinion in the case, said: ‘ ‘The object of the statute [requiring the fencing of lands] is manifest. As there are, or were, in the state of Texas, as well as in the newer states of the west generally, vast areas of land over which so long as the government owned them, cattle had been permitted to roam at will for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors to change the custom of the country in that particular, and oblige cattle owners to incur the heavy expense of fencing their lands, or be held as trespassers by reason of their cattle accidentally straying upon the land of others. It could never have been intended, however, to authorize cattle owners deliberately to take possession of such lands and depasture their cattle upon them, without making-compensation, particularly if this were done against the will of the owner, or under such circumstances as to show a deliberate intent to obtain the benefit of another’s pasturage. In other words, the trespass authorized, or rather condoned,
A ixumber of the cases cited by appellant refer to tlhe distinction pointed out in Lazarus v. Phelps, supra, and recognize the rule there laid down. See Nuckolls v. Gaut, 12 Colo. 361, 21 Pac. 41; Walker v. Bloomingcamp, 34 Oregon 391, 43 Pac. 175; Chase v. Chase, 15 Nev. 259, 263; Larkin v. Taylor, 5 Kan. 434; Bileu v. Paisley, 18 Oregon 47, 21 Pac. 934.
The case of Smith v. Williams, 2 Mont. 195, is not at variance with the views herein expressed. That was an action in the nature of trespass to recover damages alleged to have been suffered by reason of the cattle of defendant breaking into the inclosure of plaintiff and destroying his grain. The evidence in the case was not properly before the court, and
The case of Fant v. Lyman, 9 Mont. 61, 22 Pac. 120, seems to conflict with the views of the court in the present case. We find, however, that the court, in that case used the following language: “Section 1119 of the Fifth Division of the Compiled Statutes subjects the owners of animals to liabilities for any damage done by them by breaking into the lands of another inclosed by a lawful fence. This section negatives the liability of the owner when animals lawfully at large, as in this instance, stray on uninclosed lands in quest of food or pasturage. ’ ’ If the facts in the case were as indicated in that part of the opinion just given, then Fant v. Lyman, supra, is in accord with the conclusions reached herein.
In the case before us, the complaint was amended so as to charge that the defendant “willfully and maliciously” herded and pastured his sheep upon plaintiff’s land. While there was enough evidence of willfulness and malice on the part of the defendant to go to the jury, yet exemplary damages were not asked, and it is admitted that a verdict for the actual damages only was returned. We may say, further, that the action being in contract, the tort having been waived, the original complaint was sufficient, and the amendment made thereto unnecessary.
The judgment and order appealed from are accordingly affirmed. Affirmed.