No. 88-190 

TP?: 'PHE SUPREME COURT OF THE STATE OF MONTANA 

1988 

VICTORIA S. WIJJLIAMS and LARRY 

D. WILI~IAMS, 

Plaintiffs and Appellants, 

-vsSPENCER SETSTAD and DAWN SELSTAD, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Skaggs Law Firm; Robert H. Skaaqs argued, ~illings, 

Montana 

For Respondent : 

Peterson, Schofield & Leckie; K.D. Peterson argued, 

Rillings, Montana 

Submitted: October 11, 1988 

Decided: December 13, 1988 

Z 

C; - 

A Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal arises from a grant of summary judgment in 

the District Court of the Thirteenth Judicial District, 

Yellowstone County, Montana. A motorist was injured when a 

horse ran onto the county highway located within a herd 

district. The lower court held these livestock owners owed 

no duty to the appellants as a matter of law. We affirm. 

Appellants allege Victoria Williams was driving on 

12-Mile Road near Shepherd, Montana, when a horse owned by 

the respondents ran onto the highway. In her attempt to 

avoid the horse, Victoria lost control of her vehicle and was 

injured. The parties have stipulated that the accident 

occurred on a secondary county road which is located within a 

"herd district," but which is not part of the Federal-Aid 

Primary Highway System. 

Appellants argue the respondents negligently failed to 

maintain fences on their property adjoining 12-Mile Road, and 

negligently failed to restrain and confine the horse, 

"thereby permitting said horse to run at large." Appellants 

also allege that "Defendants knew, or should have known, that 

their negligence as heretofore described would in fact result 

in said horse running at large . . . " Appellants also relv 

on the doctrine of res ipsa loquitur. 

Respondents moved to dismiss the action. After 

considering the stipulations, the motion to dismiss was 

treated by the District Court as a motion for summary 

judgment. By order and memorandum dated January 20, 1988, 

the District Court granted respondents' motion. The court 

held that herd d-istrict statues were designed only to protect 

other land owners and thus were not exceptions to the open 

range doctrine. 
Although the open range doctrine relieves owners or 

possessors of livestock of a duty to keep their livestock 

from wandering onto the roadway, appellants argue that the 

herd district is a legislative exception to this rule. In 

support of this theory, appellants note the Legislature has 

otherwise modified the open range doctrine by preventina 

livestock from running at large in certain areas through 

enactment of (S(S 60-7-101 through 60-7-205, MCA (state 

highways which have been designated as part of the National 

Svstem of Interstate or Defense Highways or as part of the 

Federal-Aid Primary System). Similarly, they argue, because 

SS 81-4-301 through 81-4-309, MCA, provide for the creation 

of herd districts and penalties for those who "shall 

willfully permit" livestock to "run at large within any herd 

district," the no-duty rule no longer applies. We disaqree 

with this conclusion. 

Recently we have restated that the law of the open 

range is the law of Montana and that the exceptions enacted 

by the Legislature have been carefully crafted. State ex 

rel. Martin v. Finley (Mont. 1987), 738 P.2d 497, 499, 44 

St.Rep. 1050, 1052. We are here confronted with a livestock 

statute which makes it a misdemeanor to willfully allow 

livestock to roam at large within a herd district. The 

question we must answer is whether this statute was intended 

by the Legislature to impose a duty on livestock owners to 

keep I-ivestock from wandering onto the roadvra~7 within the 

herd district. 

Section 81-4-306, MCA, provides: 

(1) Any person who is the owner or 

entitled to the possession of any horses, 

mules, cattle, sheep, asses, hogs, or 

goats, who shall willfully permit same to 

run at large within any herd district, 

shall be guilty of a misdemeanor and upon 

conviction thereof shall be punished by a 

fine of not less than $50 or more than 

3250 for each oFfense. Each cia17 that 
each five head or less of such horses, 

mules, cattle, sheep, asses, hogs, or 

goats are willfully permitted to run at 

large shall constitute a separate 

offense. 

(2) Any person who is the owner or 

entitled to the possession of any bull, 

stallion, or jackass over 1 year of age 

who shall willfully permit same to run at 

large within any herd district shall be 

guilty of a misdemeanor and upon 

conviction thereof shall be punished by a 

fine of not less than $50 or more than 

$250 for each offense. Each day that 

such bull be permitted to run at large 

shall constitute a separate offense. 

In order to determine whether the Legislature intended 

to create a duty to motorists, we look to the plain language 

of the statute and to the practical implications of imposing 

such a duty. Initially, we point to the definition of open 

range as defined in 5 81-4-203, MCA, wherein the Legislature 

specifically included highways: 

The term "open range" includes all 

highways outside of private enclosures 

and used by the public whether or not the 

same have been formally dedicated to the 

public. 

Nothing in this definition, or in the herd district statutes 

removes the no-duty rule of the open range from applying to 

highways, whether they pass through a herd district or not. 

In this case, we agree with the District Court that the 

herd district statutes were not designed to protect motorists 

but were only intended to protect landowners and owners of 

livestock. Recently, in State ex rel. Martin, supra, we 

examined the open range doctrine and the statutory exceptions 

which we noted were carefully crafted by the Legislature. 

Such exceptions include those enumerated under S 60-7-101 et 

seq., MCA, where the Legislature's goal was to strike a 

balance between the needs of Montanans who raise livestock 
and the need to make Montana's highways safer for motorists. 

Similarly, the Legislature has specificallv stated that 

certain kinds of livestock shall not wander at large on open 

range. Sections 81-4-204, -207, -208 and -210, MCA. 

It is simply not clear that Montana's Legislature 

intended to create a duty owed to motorists through enactment. 

of the herd district statutes. Appellants point to the 

Federal District Court's decision in Read v. Buckner (D.Mont. 

1981), 514 F.Supp. 281, where, in a similar case, the court 

refused to grant the defendant's motion for summary judgment. 

The court agreed with the plaintiff's argument that 

S§ 81-4-201 and 81-4-202, MCA, create a civil cause of action 

by a motorist against one who willfully permits swine, sheep 

or goats to run at large. The court reasoned: 

Even if in 1895 the Legislature intended 

to protect only landowners against damage 

caused by swine, it is difficult to 

believe that in 1945 a legislature fully 

aware of paved roads, automobiles, and 

accidents did not, by changing the status 

of sheep and goats, intend that the 

protection of the law should extend to 

all who were injured by violations of it. 

Certainly the language contains no 

limitations. 

Read, 514 F.Supp at 283. 

The appellants urge us to accept this reasoning with 

respect to the herd district statutes. However, we find this 

reasoning u.npersuasive. In fact, such a proposition merelv 

begs the question: If the Legislature was aware of the 

problems these animals created for motorists, and intended to 

create civil liability to protect motorists, why did not the 

Legislature simply put that into the statues? We should not 

credit the Legislature with an intent to create a civil duty 

where there is nothing in the legislation to lead us to that 

conclusion. 
We are not persuaded this was the Legislature's intent 

because imposing such liability under the herd district 

statutes would likely result in strange and amorphous 

liability rules. For instance, liability would result 

unexpectedly where the herd district is. established only for 

a portion or portions of a year, or where districts are 

established in a checkerboard fashion along a county road. 

There are a multitude of scenarios imaginable which 

illustrate the problems with such a rule and which militate 

against that construction. We hold the Legislature did not 

intend to change the open range no-duty rules through 

enactment of the herd district statutes. 

The judgment of the District Court is affirmed. 

We concur: A 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

It is no credit to our Court that it follows meekly the 

fundamental errors of past decisions of this Court. When 

former interpretations of law take away a person's right of 

remedy, the basic underpinnings of those interpretations are 

called to account. For if equal justice under the law is the 

supreme goal of American justice, inequality of right or 

result defeats that goal. The legislature cannot be blamed 

for this decision; the legislature rightly determined when 

and how livestock owners should control their animals at 

large. It is judge-made law, and not legislative fiat, that 

applies livestock containment laws to automobiles. Nowhere 

do those laws make reference to automobiles. 

The majority approached this case all wrong. The 

livestock laws were never intended to determine the rights of 

motorists vis-a-vis livestock owners arising out of 

animal-automobile collisions. The objectives of our 

livestock containment laws are to control unwanted breeding 

by stray animals, to distinguish between animals on open 

range and in herd districts, to fix who has a duty to fence 

between livestock owners and landowners; and to provide for 

the taking and return of estrays. These statutes have the 

venerability of antiquity: they preceded modern day 

vehicular traffic. They were enacted when road traffic 

consisted essentially of carriages and hay wagons, to which 

animals at large presented no danger. For their purposes, 

livestock containment laws have a valid application; for 

torts not related to their purposes, the livestock 

containment laws should be disregarded and the ordinary rules 

of negligence laws should. apply. Then the task of the Court 

would be simple: was the defendant's negligence a proximate 
cause of the motorist's injuries, and comparatively, did the 

plaintiff's want of care contribute to her injuries. 

Application of livestock containment laws to 

animal-vehicular collisions, as in this case, creates a 

hotch-potch of dissimilar results from like incidents: the 

livestock owner is not liable if the animal is a purebred 

bull between July 1 and December 1; a mare, filly or jenny; 

or a cow. Rut the livestock owner may be liable if the 

animal is a mixed-breed bull anytime; a purebred bull between 

December 1 and June 1; a stallion, ridgeling or mule; or a 

sheep, a pig or a goat. When liability depends on the sex or 

kind of animal, or the time of the year and not the degree of 

negligence, the law is awry. Such confounded results say 

that some animals, at some times, are worth more than people. 

How much more simple and concordant with our basic 

notions of liability it would be if we realized that the 

livestock containment laws were not applicable here, and 

decided this case on the well-worn and suitable statute of 

principle: 

. . . everyone is responsible not only for the 

results of his willful acts, but also for an injury 

occasioned to another by his want of ordinary care 

or skill in the management of his property or 

person except so far as the latter has willfully or 

by want of ordinary care brought the injury upon 

himself. 

Section 21-1-701, MCA. 

c3&- 

Justice