No. 13140 

IN THE 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: 

For Applicant : 

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 County Attorney, argued, 

Helena, Montana 

Submitted: September 23, 1975 

3Ci fj - 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, in Lewis and 

Clark County Cause No. 39105 entitled "State of Montana, ex re1 

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 to be served on the respondent 

judge, the county attorney of Lewis and Clark County and the 

dccorney general. All proceedings were stayed under further 

$~rder of the Court. 

An adversary proceeding was had in that on the date set 

ior hrdring, Thomas F. Dowling, county attorney, and Charles A. 

Sraveley, deputy county attorney, appeared and argued orally 

without having filed briefs, responsive pleadings or in any manI I ridr complying with our rules other than to file a Motion to 

&ash" on the grounds that the application for supervisory control 

l I was not timely". The motion to quash is denied. 

We therefore look to the petition and attached exhibits for 

,:he C~LL situation. Lewis and Clark County Aistorney Dowling, 

wichouc notice to relator obtained an order requiring, among other 

ihings, the summary seizure of three dogs belonging to relator 

and requiring relator to appear before Judge Gordon Bennett to 

show cause why one of the dogs should not be destroyed and the 

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

tendencies". 

The situation giving rise tc~ this unusual type of action 

a~id drder was as follows: Relator had his three dogs chained on 

his own premises. On June 5, 1975, the body 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 the body, the Siberian dog's chain was 
wrappeJ dbduc he iorsv 3f che child four times. At that ti-me 

):elator Fields was absent from the scene of the tragedy but had 

left his dogs in care of another, but chained and cared for on 

uremises where he had a right to have them. 

The three dogs were seized and placed in the city of 

'ieleria dog pound. On June 17 relator returned to Lewis and Clarlc 

County and consulted his attorney. His attorney filed a motion 

If ro Strike and Expunge, and Alternative Motion to Quash" the 

order providing for seizure of the dogs. Judge Bennett was disqualified and respondent District Judge Nat Allen accepted j~ris- 

~ic t ion. 

Briefs were filed by both sides on the previously mencioned motions to strike and expunge and alternatively to quash. 

tespondent Judge Allen denied the motions and set the matter for 

If hearing upon the merits" for June 26, 1975. 

On June 26, 1975, the respondent judge, from the bench, 

drdered the continued confinement of the Siberian Husky dog but 

ordered the return of the other two dogs to relator 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 findings were that relator 

here was 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 child by "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 such was 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 in a private capacity, represented the. parents of 

the deceased child. A lawsuit against relator Fields praying for 

damages in a large sum has been filed by the parents. We need not 

develop this further to observe that probably the most critical 

evidence at any future proceeding would be the dog. 

The foregoing recitations are background 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 are not within the boundaries 

oi any city or town. There is simply no statute or law making 

che keeping of a domestic animal, a dog, on one's own premises 

illegal in any way. It cannot be without more a public nuisance. 

Without more, the proceeding below is held void. 

That emotions naturally engendered by the tragic death 

oi little IIeidi Foust caused such an action is clear. Yet, there 

is no law permitting the seizure and destruction of relator's dog. 

An incidental benefit will be the preservation of indispensable 

evidence for use in the forthcoming action for damages. The 

proceeding below is ordered dismissed and relator's dog returned 

to him forthwith.