NO. 88-545 

IN THE SUPREME COURT OF THE STATE OF 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 Honorable C. R. ~c~eil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

M. ~ichard Gebhardt, Missoula, Montana 

For Respondent: 

Robert I,. Fletcher, Thompson Falls, Montana 

Submitted on Briefs: April 6, 1989 

Decided: May 2, 1989 

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Mr. Justice Fred J. Weber delivered the Opinion of the Court.. 

The plaintiff, Mrs. Grabenstein, initiated this suit in 

justice court to recover the value of her dog which was shot 

and killed by the defendant, Mr. Sunsted, upon discovery of 

the dog in his chicken coop. Following a trial de novo, the 

District Court for the Twentieth Judicial District, Sanders 

County, entered judgment for the defendant and awarded him 

$30 damages for the loss of his chickens and $45.50 for costs 

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 to shoot the dog which was killing his 

poultry? 

2. 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? 

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 

the raising of chickens. The Grabensteins were the owners of 

a large, black Labrador retriever named Duke, whose fate is 

the subject of this appeal. 

While performing his morning chores on July 16, 1985, 

Mr. Sunsted heard a dog bark in the vicinity of his chicken 

coop. Having previously experienced problems with coyotes, 

Mr. Sunsted grabbed a shotgun from the barn before proceeding 

to the coop. Outside the coop he found five dead chickens. 

The door to the coop was broken down. Ins+-de the coop, which 

was a fully enclosed structure, six more chickens lay dead. 

The black Labrador, which was 1ater claimed by the 
Grabensteins to be "Duke," was found in the 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, 

estimating his value 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 rule on this matter is as foll.ows: 

. . . to justify the killing of a dog in defense of 

property there must he an apparent necessity for 

the defense, honestly believed to be real, and the 

acts of defense must in themselves be reasonable, 

or in other words, it is necessary to show that the 

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 first case in Montana involving a "dog in 

the chicken coop" scenario. This Court stated that a person 

protecting his property has the right to act upon the reasonable appearance of things and if there is reasonable 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 at the time the fatal shot was fired. 

168 P.2d at 841. Although plaintiff in this case argues that 

the District Court's conclusion should have been the same as 
that reached in Trenka, we conclude that the facts of this 

case are significantly different from those presented in 

Trenka so as to justify a different result. 

When the defendant was asked to describe b~hat the dog 

was doing when he first saw him, he stated: 

Well, he was kind of in a pounce position with 

his front down. And there was a chicken that was 

in the corner trying to escape his goings 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, well over 100 pounds 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 eventually had to 

kill the chicken because of its mangled 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 as to Duke1 s stoic character, 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 

this finding that defendant had no reason to believe that the 

dog would just as soon sleep with chickens as terrorize them. 

The plaintiff argues that because eleven chickens a?-- 

ready lay dead and the only property remaining in peril was a 

9;?.50 chicken, it was not reasonable for the defendant to 

shoot th~ C7oq in what plaintiff characterizes as an act of 
vengeance. The District Court determined otherwise, and we 

will not set aside that determination if it is supported by 

substantial credible 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 12th chicken, 

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 in Montana. 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), 122 Mont. 327, 203 P.2d 982, this 

Court held that the definition of livestock under this statute in effect at that time does not include fowl. 

Plaintiff argues that S 81-7-402, MCA, is the appl-icable 

statute which subjects the owner of a predator dog to Liability for damages only. That statute reads in relevant part: 

(1) The owner of livestock or poultry 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 

sustained by reason of the injuries as the case may 

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.utes on 

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 supported by the evidence and law 

of the case. (Emphasis added.) 

Here, the District Court properly exercised its discretion in 

declining tc accept proposed findings or conclusions. 

Affirmed.