No. 88-190

TP?:'PHE SUPREME COURT OF THE STATE OF MONTANA
1988

VICTORIA S. WIJJLIAMS and LARRY D. WILI~IAMS, PlaintiffsandAppellants,-vsSPENCER SETSTAD and DAWN SELSTAD,
Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District, Inand for the County ofYellowstone, The Honorable Robert Holmstrom, Judgepresidinq.

COUNSEL OF RECORD:

ForAppellant: 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 ClerkMr. 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 ofher vehicle andwas injured. The parties have stipulated that the accident occurred on a secondary countyroadwhich is locatedwithin a "herd district," but which is not part of the Federal-Aid PrimaryHighway System. Appellants argue the respondentsnegligently 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 "Defendantsknew, or should have known,that their negligenceasheretoforedescribed would in fact result in said horse running at large

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# .." Appellants also relv on the doctrineof 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 thatherd d-istrictstatueswere designed only to protect other land owners and thus were not exceptions to the open rangedoctrine.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 largewithin 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 iswhether this statutewas intended by the Legislature to impose a duty on livestock owners to keep I-ivestock from wandering onto the roadvra~7within the herd district. Section 81-4-306,MCA,provides: (1) Any person who is the owner or entitled to thepossession of any horses, mules, cattle, sheep, asses, hogs, or goats,who shallwillfully permit same to run at large within any herd district, shall be guilty 

### of amisdemeanor and upon conviction thereof shallbe 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 shallwillfullypermit sameto run at large within any herd district shall be guilty of a misdemeanor and upon conviction thereof shallbe 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 tomotorists,we look to theplain language of the statute and to thepractical implicationsof 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 thepublic whether ornot the samehave 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 thiscase,we agreewith the District Court that the herd district statutes were not designed toprotectmotorists but were only intended to protect landowners and owners of livestock. Recently, in State ex rel. Martin, supra, we examined the open rangedoctrineand 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 livestockand the need tomake Montana's highways safer formotorists. 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 createaduty owed tomotorists throughenactment. 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 togrant thedefendant's motion for summary judgment. The court agreed with the plaintiff's argument that S§ 81-4-201and 81-4-202, MCA, create a civil cause of action by a motorist against onewhowillfully permits swine, sheep

orgoats to run at large. The court reasoned: Even if in 1895 the Legislature intended toprotect only landowners against damage caused by swine, it is difficult to believe that in 1945 a legislature fully aware of paved roads, automobiles, and accidentsdid not,by changing the status of sheep and goats, intend that the protection of the law should extend to allwhowere injuredby violations 

### of it. Certainly the language contains no limitations. Read, 514F.Supp at 283. The appellants urge us to accept this reasoning with respect to theherd 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 formotorists, 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 thiswas 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 enactmentof the herd district statutes. The judgment of the District Court isaffirmed.

We concur: A



### JusticesMr. JusticeJohn 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 lawsmake reference to automobiles. The majority approached this case all wrong. The livestock lawswerenever intended todetermine 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 shouldbe 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 themotorist's injuries,and comparatively,did the plaintiff'swant of care contribute toher 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 isamixed-breed bull anytime; apurebred bullbetween December 1 

### and June 1; a stallion, ridgeling or mule; or a sheep, apig or a goat. When liabilitydependson the sex or kind of animal,or the time of theyear and not thedegree of negligence, the law is awry. Such confounded results say that some animals, at some times, are worthmore thanpeople. 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 resultsofhis 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. 

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Justice