No. 13140 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE ex 

### re1 FRED 

### L, FIELDS, Applicant,

DISTRICT COURT 

### OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF MONTANA, 

### IN AND FOR THE COUNTY OF 

### LEWIS AND CLARK, and THE HONORABLE NAT ALLEN, PRESIDING JUDGE, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: ForApplicant: Loble, Picotte and Loble, Helena, Montana Gene 

### A. Picotte argued, Helena, Montana For Movant : Hughes, Bennett and Cain, Helena, Montana Alan F. Cain argued, Helena, Montana For ~espondents: Thomas Dowling County Attorney argued and

Charles Graveley

## , Deputy CountyAttorney, argued, Helena, Montana

Submitted: September 

### 23, 1975 

### 3Cifj-

## f975 Decided: Filed: ' : 

### !>PER CUKIAM: This is a pesicion or.;upervisory :mtrol seeking r-o annul and set aside District Judge Nat Allen's Findings of Fact, Conclusions of Law and Order, dated July 17, 1975, inLewis and Clark County Cause No. 39105 entitled "State of Montana, exre1 Thomas F. Dowling, Relator v. Fred L. Fields, Respondent." Ex udrte this Court ordered an adversary hearing with copies of the ~2tition and supporting documents tobe served on the respondent judge, the county attorney of Lewis and Clark County and the dccorney general. 

### Allproceedings were stayed under further $~rder of the Court. An adversary proceeding was had inthat on the date set ior hrdring, Thomas F. Dowling, county attorney, and Charles A. Sraveley, deputy county attorney, appeared and argued orally without having filedbriefs, responsive pleadings or in any manII ridr complying with our rules other than to file

### a Motion to &ash" on the grounds that the application for supervisory control

lI was not timely". The motion to quash 

### is denied. Wetherefore look to the petition and attached exhibits for ,:he C~LLsituation. Lewis and Clark County Aistorney Dowling, wichouc notice torelator obtained an order requiring, among other ihings, the summary seizure of three dogs belonging torelator 

### and requiring relator toappearbefore Judge Gordon Bennett to show causewhy one of the dogs should not be destroyed and the

II ocher two dogs should not be confined to determine their vicious 

### tendencies". The situation giving rise tc~ thisunusual type of action a~id drder was as follows: Relator had his three dogs chained on his own premises. On June 

### 5, 1975, thebody of three year old l-ieidi Foust was found near the place where one of relator's dogs, =I ;iberian Husky, was chained. According to the grandfather of che decedent, who found thebody, the Siberian dog's chainwaswrappeJ dbduc he iorsv 3f che 

### child four times. At that ti-me ):elator Fields was absent from the scene of the tragedy but had lefthis dogs in care of another, but chained and cared for on uremises where he had a right tohave them. The three dogs were seized and placed in the cityof 'ieleria dog pound. 

### On June 

### 17relator returned toLewis and Clarlc County and consulted his attorney. 

### His attorney filed a motion

If ro Strikeand Expunge, and AlternativeMotion to Quash" the order providing for seizure of the dogs. Judge Bennett was disqualified and respondent District Judge Nat Allen acceptedj~ris- ~ic tion. Briefs were filedby both sides on the previously mencioned motions to strikeand expunge and alternatively toquash. tespondent Judge Allen denied themotions and set thematter for

If hearing upon the merits" forJune 26, 1975. On June 26, 1975, the respondent judge, from thebench, drdered the continued confinement of the SiberianHusky dog but ordered the return of the other two dogs torelator Fields. On July 

### 17, 1975, the respondent judge made findings of fact and conclusions of law and order. The findings recited that the respondent judge had viewed the premises and had seen the dog. The findingswere thatrelator herewas the owner of the dog, that he kept the dog on a 25 foot

11 chain on unfencedUproperty. That the three year old child crossed the unfenced property, came within the arc of the chain, and that the dog k.illed the childby "bitting (sic) and exposing her trachea".


### . The respondent court then concluded 

### as a matter of law chat the dog was a "public nuisance1'and as suchwas subject to
I1 "abatement". The respondent court then remanded" the dog to the Sheriff who he ordered 

### to "exterminate" said dog [public nuisance] 

### forthwith.iJn the sarile day as the order was made, ciouney A~rorney Dowling, acting ina private capacity, represented the. parents of the deceased child. A lawsuit against relator Fields praying for damages in a large sum has been filedby the parents. We need not develop this further to observe that probably the most critical evidence atany future proceeding would be the dog. The foregoingrecitations arebackground only. The question 

### is whether a district court can declare a domestic animal,

I' 'I confined by chain even if on unfenced1'premises, a public nuisance1'. 

### ela at or's premises arenot within theboundaries oiany cityor town. There 

### is simply no statuteor law making che keeping of a domestic animal, a dog, on one's own premises illegal inany way. 

### It cannot be without more a public nuisance. Without more, the proceeding below 

### isheld void. That emotions naturally engendered by the tragic death oilittleIIeidi Foust caused such an action is clear. Yet, there isno lawpermitting the seizure and destruction of relator's dog. An incidental benefit 

### willbe the preservation of indispensable evidence foruse in the forthcoming action fordamages. The proceeding below isordered dismissed and relator's dog returned tohim forthwith.