### NO. 88-545
IN 

### THE SUPREME COURT OF THE STATEOF 

### MONTANA 1989

BETTY GRABENSTEIN, Plaintiff and Appellant,-vsTERRY 

### SUNSTED, Defendant and Respondent.

APPEAL FROM: ~istrict Court 

### of the Twentieth ~udicial ~istrict, In and for the County of Sanders, The HonorableC. R. 

### ~c~eil, Judgepresiding. COUNSEL OF RECORD: ForAppellant: 

### M. ~ichard Gebhardt, Missoula,Montana For Respondent: Robert I,. 

### Fletcher, ThompsonFalls,Montana

Submitted on Briefs: April 6,

### 1989 Decided: May 2, 1989

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### Filed: o,

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### Clerk 

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## --Mr. 

### Justice Fred J. 

### Weber delivered theOpinion of theCourt..

The plaintiff, Mrs. 

### Grabenstein, initiated this suit in justice court torecover thevalue of her dog which was shot and killed by the defendant, Mr. 

### Sunsted, upon discovery of the dog inhis chicken coop. Following a trialde novo, the District 

### Court for the Twentieth Judicial District, Sanders County, entered judgment for the defendant and awarded him $30 

### damages for the lossof hischickens and $45.50 

### forcosts incurred in litigation. From that judgment, the plaintiff appeals. We

### affirm. The issues are: 1. 

### Did the District Court 

### err in determining that the defendant had a right toshoot the dog which was killing his poultry? 2. 

### Did theDistrict

### Court errin

### itsrefusal toreceive proposed findings of factorconclusions of law and towaive counsel's request fororalargument? Both parties live in a rural setting approximately 5 

### miles from Heron, Montana. Defendant Sunsted's property 

### is located just over 1.5 

### miles from the Grabensteins, where the Sunsteds carry on various agricultural pursuits, including theraising of chickens. The Grabensteins

### weretheowners of
a large, black Labrador retriever named Duke, whose fate is the subjectof thisappeal. While performing his morning chores on July 16, 1985, Mr. 

### Sunsted heard a dog bark inthe vicinity of his chicken coop. Having previously experienced problems with coyotes, Mr. 

### Sunsted grabbed a shotgun from thebarn before proceeding to the coop. Outside the coop he found five dead chickens. The door tothe coop was broken down. Ins+-dethe coop, which
was a fully enclosed structure, 

### six more chickens lay dead. The 

### black Labrador, which was 1ater claimed by 

### theGrabensteins tobe "Duke," was found inthe corner trying 

### t~ catch the last remaining live chicken in the coop. Mr. Sunsted shot the dog, killing him instantly, then reported the incident to the deputy sheriff. The deputy traced the ownership of the dog to the Grahensteins, who 

### were notified of the shooting. Mr. Sunsted disposed of the dog himself. The Grahensteins later sought damages for the Toss of nuke, estimatinghisvalue at$3,500.

Did the Di-strict Court 

### err in determini-ng that the defendant had a right to shoot the dog which was killing his poultry? The common law ruleon thismatter 

### isas foll.ows:



# . .. tojustify thekillingof a dog 

### indefense of property there must he an apparent necessity for the defense, honestly believed tobe real, and the acts 

### of defense must in themselves be reasonable, orinotherwords, 

### it isnecessary toshow thatthe danger from 

### its attack was imminent at the 

### time, and that the injury could not otherwise have been prevented. Trenka v. Moos (1946), 118 Mont. 607, 613, 168 P.2d 837, 840-41. Trenka was the firstcase inMontana involving a "dog in the chicken coop" scenario. This Court statedthat 

### a person protecting hisproperty has theright toactupon thereasonable appearance of things and if there 

### isreasonable cause to believe that necessity for killing the dog exists, that person 

### is not liable. 168 P.2d at 841. 

### In Trenka, this Court held that the chicken owner was not reasonably justified in shooting the dog because the dog was not in the act of molesting the fowl atthe time the fatal shot

### was fired. 168 P.2d at841. Although plaintiff inthiscase argues that the District Court's conclusion should have been the same asthat reached in Trenka, 

### we conclude that the facts of this
case are significantly different from those presented in Trenka so astojustify a different result. When the defendant was asked to describe b~hatthe dog
was doingwhen he firstsaw him, he stated: Well, he was kind of ina pounce positionwith his front down. And there was a chicken that was in the corner trying toescape hisgoings on. And he was biting at it and the chicken would fly and held reach up 

# -- now he was a big dog like, you know, 

### wellover 100pounds I would guess. I really don't know but that's what I would guess. And he would 

### rise up trying to catch the chicken and the chicken would come d.own. And of course 

### in that small of confines with water and feeder in there, he had 

### it pretty well., you know, cornered. While the defendant did not actually 

### see the chicken in the dog's mouth, he described. the bird as being "poked full of teeth holes and pretty well. chewed up" as if "something has had a hold of 

### it 

# .

# .." The defendant eventuallyhad to killthe chicken because of 

### itsmangled state. Testimony was offered to the effect that Duke was a gentle clog who was accustomed to livj-ng and even sleeping with chickens. Regardless of this testimony astoDuke1

### s stoiccharacter, the lower court found that the defendant had no prior knowledge of the dog's temperament or disposition toward poul.try when he came upon the sight of a dog cornering one chicken surrounded by numerous dead chickens. The evid.ence supports thisfindingthatdefendant had no reason tobelieve thatthe dog would just as soon sleepwith chickens asterrorizethem. The plaintiff argues that because eleven chickens a?-- ready lay dead and the onlyproperty remaining in perilwas a 

### 9;?.50 chicken, 

### it was not reasonable for the defendant 

### to shoot th~ C7oq 

### in what plaintiff characterizes as an act 

### ofvengeance. The District Court determined otherwise, and 

### we 

### will not set aside that determination if 

### it is supported by substantialcredible evidence. Parker v. Elder (Mont. 1988), 758 P.2d 292, 293, 45 St.Rep. 1305, 1307. Again, the defendant caught the dog later identified as Duke in the act of molesting one OF his chickens. The evidence establishes that 

### it reasonablv appeared to the defendant that the dog had broken into a ful1.y enclosed chicken house, had killed 11 chickens, was attacking a 12thchicken, could not be contained in the coop because of 

### its broken door, and that the size and unknown temperament of the dog made physical restraint unrealistic and potentially dangerous. TJnder those circumstances, 

### we conclude that 

### it was reasonable for defendant to shoot the dog under the common law rule as 

### set forth in Trenka. We hold that substantial credible evidence exists to support the District Court's determination. The plaintiff argues that the common law rule 

### is abrogated by statute inMontana. The two relevant statutes are 

### $S 81-7-401 and 402, MCA. The first statute, $ 81-7-401, MCA, allows the killing of a dog who kills, wounds, or injures any livestock not belonging to the dog's master. In Granier 

### v. Chagnon (1949), 122Mont. 327, 203 P.2d 982, this Court held that the definition of livestock under this statute ineffectatthat

### timedoes not include fowl. Plaintiff argues that

### S 81-7-402, MCA, 

### isthe appl-icable statutewhich subjectsthe owner of a predator dog toLiability for damages only. That statute reads inrelevant part: (1) The owner of livestockorpoultry injured or killed by any dog may recover as liquidated damages from the owner of the dog the actual value of the animals killed or the value of the damages sustainedby reason of the injuries asthecasemay be.

### Because neither this statute or 

### 5 81-7-401, MCA, authorize the killing of a dog who destroys fowl, the plaintiff argues that the common law rule has been abrogated and defendant's only remedy is that of damages under S 

### 81-7-402, MCA. We disagree. At common law, an owner of domestic fowl has a right to lrill a dog attacking or menacing their safety if such is necessary for their protection,and that common law right "is not abrogated by a statute which creates a right in a nonowner of certain enumerated animals, not including fowls, to 

### kill a dog attacking such animals." 3A C.J.S. 

### Animals, S 292. 

### These statutes do not limit, either expressly or impliedly, the poultry owner's right at common law to kill an attacking dog when such a lcil!.ing is reasonably justified. Rather, the statutes provide additional relief after the fact and address specific si.tuations not covered 

### by the common law. 

### We hold that the defendant's common law ri.ght to 

### kill plaintiff

## 's dog was not abrogated by Montana's stat.uteson the subject.

Did the District Court err in its refusal to receive proposed findings of fact or conclusions of 

### law and to waive counsel's request for oral argument? At the closing of the case,plaintiff's counsel offered to submit proposed findings of fact and conclusions of law which were refused by the court. Instead, the court offered five minutes to each party in which to be heard. Neither party took advantage of that time. We therefore conclude that no basi.s exists upon which to al.leae error as to the issue of oral. argument..

### Furthermore, there is no mandatory requirement that the Dj-strict Court accept proposed Findings of fact or conclusions of law. Rule 52, M.R.Civ.P., 

### provides that:
The court may require any party to submit proposed findings of fact and conclusions of law for the court's consideration and the court may 

### adopt any such proposed findings or conclusions as long as 

### they are supportedby the evidence and law of the case. (Emphasisadded.) Here, the District Courtproperly exercised its discretion in declining tc accept proposed findingsor conclusions. Affirmed.