No. 85-308 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

ESTHER SIEGFRIED, 

Plaintiff and Appellant, 

-vsIRVIN ATCHISON, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moulton, Bellingham, Longo & Mather; Ward Swanser, 

Billings, Montana 

For Respondent: 

Anderson, Brown, Gerbase, C~bull & Jones; Steven J. 

Harman, Billings, Montana 

Submitted on Briefs: Aug. 29, 1985 

Decided: December 5, 1985 

Filed: DEc ". 5 1985 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order for summary judgment of 

the District Court, Thirteenth Judicial District, Yellowstone 

County, the Honorable Charles Luedke, District Judge. We 

affirm. 

Appellant Esther Siegfried was injured in an automobile 

accident which occurred before daylight on Blue Creek Road, a 

county road, near Billings when she veered to the right to 

avoid hitting a horse which was standing in the middle of the 

road. The horse belonged to Irvin Atchison. Siegfried's car 

left the pavement and she overcorrected, losing control of 

the vehicle, which slid across the highway and onto its top 

in a ditch. As a result of the accident, surgery was 

performed on both of Mrs. Siegfried's hands. She filed a 

complaint alleging three theories of liability--negligence, 

res ipsa loquitur, and strict liability. Respondent Atchison 

moved for summary judgment pursuant to Rule 56, M.R.Civ.P., 

which was granted. Siegfried appeals the negligence and res 

ipsa loquitur issues. 

The Court will consider only whether open range 

designation is a question of law or a question of fact. 

Summary judgment is proper only if the record discloses no 

genuine issue of material fact and the movant is entitled to 

judgment as a matter of law. Reaves v. Reinbold (Mont. 

1980), 615 P.2d 896, 37 St.Rep. 1500. 

Siegfried argues that fencing negates the benefits 

enjoyed by livestock owners under Montana's open range law 

and the summary judgment should not be granted because the 

question whether the accident occurred on open range was one 

of fact for the jury. Montana was open range country before 
it became a state. Under range law, land owners must fence 

out intruding livestock by lawful enclosure, although there 

is some legislative erosion of this doctrine. The seeming 

inconsistencies in the case law result from the 

classification of the highway involved and the date of its 

construction or reconstruction. A livestock owner has a. duty 

to keep his livestock from wandering onto a highway that is 

part of the federal-aid primary system or the national system 

of interstate and defense highways. See Ambrogini v. Todd 

(Mon.. 1982), 642 P.2d 1013, 39 St.Rep. 400. his duty is 

not imposed otherwise. See Jenkins v. Valley Garden Ranch, 

Inc. (1968), 151 Mont. 463, 443 P.2d 753; ~artsch v. 1r~~ine 

Co. (1967), 149 Mont. 405, 427 P.2d 302; ~hompson v. 

Mattuschek (1959), 134 Mont. 500, 333 P.2d. 1022; ~einhorn v. 

Griswold (1902), 27 Mont. 79, 69 P. 557; Monroe v. Cannon 

(1900), 24 Mont. 316, 61 P. 863. 

The question when open range ceases to be open range is 

particularly acute as it pertains to modern highways and 

high-speed automobiles. The legislature has begun to address 

the problem. Stock owners no longer are held to the standard 

of willfully allowing their animals to graze on fenced 

federal and state highways, but now are liable if they permit 

their 

. . . livestock to graze, remain upon, or 

occupy a part of a right-of-way of: 

(1) a state highway running through 

cultivated areas or a part of the fenced 

right-of-way of a state highway if in 

either case the highway has been 

designated by agreement between the 

highway commission and the secretary ~f 

transportation as a part of the national 

system of interstate and defense 

highways; or 

(2) a state highwa-y designated by 

agreement between the highway commission 
and the secretary of tra.nsportation as a 

part of the federal-aid primary system, 

except as provided in 60-7-202. 

Section 60-?-201, MCA. 

Siegfried asserts the presence of fences signals the 

demise of open range. No authority is cited for this 

proposition, nor can we find any. There is evidence of 

fencing in both Bartsch and Jenkins, supra. See also Fries 

v. Shaughnessy (1972), 159 Mont. 307, 496 P.2d 1159. Nor do 

the statutes so provide. The Highway Department is required 

statutorily to fence the right-of-way of any highway in the 

state system constructed. or reconstructed after July 1, 1969, 

which passes "through open range where livestock present a 

hazard to the safety of the motori.st." Section 60-7-103 (I), 

MCA. The record shows Blue Creek Road, secondary highway 

416, is not one of those highways off which Atchison was 

obligated to keep his livestock, pursuant to § 60-7-201, MCA. 

The presence of privately constructed fences along the 

highway right-of-wa.y does not indicate the area is not open 

range. 

Nor does lack of designation of open range in the 

Yellowstone County Jurisdictional Area Zoning Plan legally 

eradicate open range designation. Zoning regulations are 

designed to foster compatible development of competing 

interests, but there is nothing in the statutes to indicate 

zoning regulations change the open range designation of an 

area. They do not change the liabilities of persons living 

on the land affected. 

Clearly open range d-esignation is a legal 

determination. The party moving for summary judgment has the 

initial burden of establishing the complete absence of 

material fact. Rumph v. Dale Edwards, Inc. (1979), 183 Mont. 
359, 600 P.2d 163. Atchison met this burden. The record 

discloses no genuine issue of material fact and the burden 

shifts to Siegfried to present substantial evidence ra-ising 

the issue. "Once the burden has shifted, the party opposing 

the motion is held to a standard of proof which is as 

substantial as that initially imposed upon the moving party." 

Rumph, supra at 183 Mont. 366, 600 P.2d at 167. This burden 

was not met. 

The accident occurred on a secondary highway which ran 

through an open range. Because the highway is not part of 

the national system of interstate and defense highways or 

part of the federal-aid primary system, owners of livestock 

are not legally obligated to keep their livestock off any 

part of the right-of-way. There is no genuine issue of 

material fact. The order of the District Court granting 

summary judgment is affirmed. 

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