217 P. 663 | Mont. | 1923
delivered the opinion of the court.
The complaint, in this action purports to set forth three causes of action. The first is for wages due and unpaid, and the second and third for damages alleged to certain hay, pasturage and personal property belonging to the plaintiff, upon premises by him rented, by reason of alleged trespass by the defendants and their cattle. The second and third causes of action stated amount merely to but one cause of action alleged differently in separate counts. The first of these counts recites that defendants through their agents and servants, during the absence of the plaintiff from the premises, entered upon and into plaintiff’s buildings used and destroyed personal property therein contained, and herded defendants’ cattle on the premises in large numbers, thus consuming plaintiff’s hay and pasturage. The second count, being designated plaintiff’s third cause of action, is the one primarily involved on this appeal. Thereby it is alleged by plaintiff that the defendant, Deep Creek Stock Association, was an association of more than two persons “engaged in the business of raising cattle and running
The first cause of action, based on plaintiff’s claim for wages due, was admitted, the amount thereof, $109.35 having been tendered to the plaintiff, and subsequently deposited with the clerk of the court subject to plaintiff’s order. The reply admitted the deposit. There was no issue on this demand.
Defendant’s answer to the third cause of action admits that the defendant Deep Creek Stock Association was an association composed of two or more persons “engaged in the business of raising cattle,” running and herding cattle in certain designated areas of the National Forest in Broadwater county, and in effect denied all other allegations. Upon issue joined the cause was tried to a jury. At the conclusion of the testimony in support of plaintiff’s claim of damages, the defendants moved for a nonsuit as to the second and third causes of action because of failure of proof, and the court granted the motion as to the second cause of action, with the consent of counsel for the plaintiff. The cause was then submitted to the jury upon plaintiff’s first and third causes of action, and the jury returned separate verdicts in plaintiff’s favor — one for the amount admitted to be due for wages, and the other for damages assessed at $325. Judgment was regularly made and entered on the verdicts for the sum of $434.35, with interest and costs. A motion for a new trial having been denied, after the plaintiff had remitted- $46 from the amount of the judgment in pursuance of a' conditional order of the court, the cause is now before us on an appeal from the judgment.
No objection is raised or argued with respect to the verdict of the jury as to the amount due plaintiff for wages, or to allowing judgment to stand for that amount. Therefore there is, in fact, nothing before this court on appeal, other than the propriety of the verdict for damages on plaintiff’s third cause of action, and judgment for the amount thereof.
It appears that the plaintiff after putting up his hay in 1921, left the premises unoccupied by anyone, and returned thereto on October 4 and 19, on both of which occasions he found defendants’ cattle, numbering as many as forty head, upon his premises; that the hay and pasturage were completely destroyed, and other damage was done to his property as alleged. There is no evidence whatever tending to prove that the defendants willfully, negligently or wrongfully permitted the cattle to “escape from herd,” or to break into the plaintiff’s premises, or, knowing the cattle to be therein, willfully, knowingly or wrongfully permitted them to remain thereon or to do the damage alleged. And it appears without contradiction that the herders in charge of the cattle endeavored to keep them off the plaintiff’s lands, and drove them therefrom on several occasions. They also endeavored to protect the plaintiff’s hay in stack from damage by cattle by repairing the hay corral fence. The record does not disclose any duty imposed upon the herders to remain in constant attendance upon the cattle, but rather that their employment and duties incident thereto were, so far as reasonably possible, to keep the cattle upon their range obtained through forest reserve permit, and that they attempted to do no more.
However, it is argued by the able counsel for the plaintiff, and was so insisted at the trial, that the admission in defendants’ answer of the allegations of plaintiff’s third cause of action, to the effect that the defendants were “engaged in the business of raising cattle and running” and herding them “under herd and in charge of herders,” relieved the plaintiff of the necessity of proving that the cattle were placed on plaintiff’s premises by the defendants or their agents. There is no merit in this contention, for the admission is merely to the effect that the defendants did engage in such business, not
This state has long been a public range state wherein live- stock of private ownership have been and now are permitted by license of the government to graze without hindrance or restriction on the open, unoccupied, public domain. Such stock are said “to be running on the range.” This latter term has a well-understood meaning to the people of Montana, as have likewise the words “under herd” and “in charge of herders.” These words as used and commonly understood here convey the idea that a considerable number of domestic animals are gathered together and held together by herders in constant attendance upon them and in control of their movements from place to place on the public range or within certain areas. Animals may be “under herd” or “in charge of herders” one day and run at large the next. In either event the language is readily understood by the owners of livestock and others quite generally in this state. As thus defined, the meaning is in accordance with Webster’s definition of the verb “herd”; i. e., “to tend, lead, or drive as a herdsman.” (Webster’s New International Dictionary,- p. 1007.)
The evidence discloses that the so-called “herders” drove the cattle within the forest reserve upon the lands covered by the defendants’ permit for summer pasturage, and therefrom in the fall of the year, and that they drove them from the plaintiff’s premises, and other places where found without bounds, back to and within the range thus provided by the owners. The cattle were to all intents and purposes running on the public range, the difference being that the government
A legal fence is defined by statute (sec. 3374, Rev. Codes 1921), and as to the liability of the owner of livestock for tres pass it is provided: “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.” (Sec. 3378, Rev. Codes 1921.)
And it has been held that a lawful fence as defined by the statute, entirely surrounding the grounds or premises entered, or some obstruction equivalent thereto, is a condition precedent to the right of recovery of damages against the owner of animals trespassing. (Smith v. Williams, 2 Mont. 195.)
The law applicable in this case was well and correctly stated by one of the defendants’ learned counsel, Mr. Pigott, when a justice of this court. Speaking for the court he said in the case of Beinhorn v. Griswold, 27 Mont. 79, 94 Am. St. Rep. 818, 59 L. R. A. 771, 69 Pac. 557: “Either written law or custom may withhold from the owner who does not fence his land a remedy for loss suffered by reason of casual trespasses by cattle which stray upon it, and may give a remedy for such trespasses to those only who inclose their land. By custom as well as by statute the common law of England has been so modified in Montana. This is undoubtedly a legitimate exercise of the police power. * * * If the land owner fails to ‘fence out’ cattle lawfully at large, he may not successfully complain of loss caused by such livestock straying upon his uninclosed land. For under these circumstances the trespass is condoned or excused; the law refuses to award damages. While the land owner, by omitting to fence, disables himself from invoking the remedy which is given to those who inclose their property with a legal fence, and while the cattle owner is thereby
Undoubtedly the owner of animals has no lawful right to deliberately drive or herd his stock on the premises of another, or to turn them into the inclosure of another. However, under the “legal fence law” privately owned premises must be fenced as required by statute in order to enable the owner to maintain an action for damages for trespass by the livestock of another unless (1) the trespassing animal is prohibited by statute from runniiig at large, or (2) the trespassing animal has been placed or caused to be placed thereon by the owner of the animal with knowledge that the land is not open public domain.
To warrant the recovery of damages in a case such as this, the trespass must be of such a character that it may be said to
In this case there is no claim made and no evidence that the cattle were driven on to the plaintiff’s premises, or herded or left so near thereto that there was likelihood of their going to and upon the lands owned by the plaintiff. It will be noted that the second cause of action in plaintiff’s complaint charged the defendants with knowingly herding their cattle upon plaintiff’s lands, but there being no evidence to support such allegation a nonsuit as to this cause of action was properly granted by the court.
The rule applicable to the facts in this case is correctly stated by counsel for the defendants in the admirable brief filed in support of their contention on this appeal. It is so well expressed that we take the liberty of adopting counsel’s language as our own: “The defendants were under no duty to herd, or keep in herd, or under herd, their cattle or any of them. In Montana and in other, states, where, as here, the land owners must, by lawful inclosure, ‘fence out’ the livestock of others, it is too plain for argument that the cattle owner may at his own pleasure either keep his cattle on his own land or turn them out with freedom to range and roam wheresoever they may desire. He is liable for such trespass only as they commit on property within a lawful fence, unless he drive them thereon, or (what is the legal equivalent) so treats them as to impel them to trespass. An example of the latter trespass is found in Monroe v. Cannon, supra.” The same mav be said of the Dorman-Erie Case.
The judgment will stand affirmed as to the first cause of action to the amount of $109.35, admittedly due unto the plaintiff for wages. As to the third cause of action, since plaintiff proceeded at the trial upon the theory that the defendants’ answer admitted that the cattle were at all times under herd and in charge of herders, the judgment thereon is reversed and the cause remanded to the district court of Broadwater county for a new trial. Costs of this appeal are assessed against the plaintiff.
Reversed and remanded.