No. 92-283 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

ELROY C. YAGER and BARBARA A. YAGER, 

Plaintiffs and Appellants, 

-vsROLLAND DEANE, a/k/a ROLAND E. DEANE, JR., 

Defendant and Appellant, 

and 

THE STATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

J. David Penwell, Attorney at Law, Bozeman, Montana 

and John L. Weyland, Attorney at Law, Wayzata, 

Minnesota (for appellants, Yagers) 

James M. Kommers and Daniel J. Roth; James M. 

Kommers and Associates, Bozeman, Montana (for 

appellant Deane) 

For Respondent: 

Allen B. Chronister; Chronister, Driscoll & Moreen, 

Helena, Montana 

Kelly O'Sullivan, Agency Legal Services Bureau, 

Helena,, Montana . - 

Submitted on Briefs: October 29, 1992 

CLERK QF Siji2i::EEiE COUm 

SZ.A.I.E ~i:' w~*l(jNlAlUA 
Justice Karla M. Gray delivered the Opinion of the Court. 

Plaintiffs Elroy and Barbara Yager and defendant Rolland Deane 

appeal from an order of the Eighteenth Judicial District Court, 

Gallatin County, granting summary judgment in favor of the State of 

Montana. We affirm. 

The sole issue on appeal is whether the District Court erred 

in granting summary judgment on the basis that the State of Montana 

had no duty to prevent livestock from wandering onto the interstate 

highway. 

The pertinent facts of the case are undisputed. On March 22, 

1989, at approximately 1:30 a.m., Elroy Yager (Yager) was driving 

a semi-tractor and trailer in the westbound lane of Interstate 90 

(1-90). Yager's vehicle struck a horse, owned by defendant Rolland 

Deane (Deane) , that had wandered onto the highway near the Jackson 

Creek interchange east of Bozeman. As a result of the impact, the 

semi-tractor and trailer went through a guardrail and rolled down 

an embankment, injuring Yager. 

On March 29, 1991, Elroy and Barbara Yager (the Yagers) filed 

suit against Deane and the State of Montana (the State). They 

alleged that Deane negligently allowed his horse to wander onto I90 and that the State negligently maintained a fence and 

cattleguard, allowing the horse access to 1-90. Elroy Yager sought 

damages for permanent bodily injury, medical expenses and lost 

wages. Barbara Yager sought damages for loss of consortium. Deane 

and the State filed cross-claims seeking indemnity and contribution 

from each other. 

On April 24, 1992, the District Court granted the State's 
motion for summary judgment. The District Court determined that 

actionable negligence could not lie against the State absent a 

legal duty to erect or maintain a fence or to keep the interstate 

highway free of livestock. It concluded that no such duty existed. 

The Yagers and Deane appeal. 

Did the District Court err in granting summary judgment on the 

basis that the State of Montana had no duty to prevent livestock 

from wandering onto the interstate highway? 

A district court properly grants summary judgment when there 

are no genuine issues of material fact and the moving party is 

entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. 

Ordinarily, issues of negligence are issues of fact not susceptible 

to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 

201, 749 P.2d 67, 69. However, actionable negligence arises only 

from the breach of a legal duty: the existence of a legal duty is 

a question of law to be determined by the district court. Nautilus 

Insurance Co. v. First National Insurance (Mont. 1992), 837 P.2d 

409, 411, 49 St.Rep. 802, 803. The question before us, as it was 

before the District Court, is whether the State has a legal duty on 

which appellants can base a negligence claim. We examine, in turn, 

the sources which appellants contend impose a duty on the State to 

prevent livestock from wandering onto 1-90 where the accident 

occurred. 

Statutory Basis 

The District Court considered whether $5 60-7-103 and 60-5- 
105(1), MCA, required the State to prevent livestock from wandering 

onto the highway. Section 60-7-103, MCA, provides: 

Department to fence right-of-way through open range. 

(1) The department shall fence the right-of-way of any 

part of the state highway system that is constructed or 

reconstructed after July 1, 1969, through open range 

where livestock present a hazard to the safety of the 

motorist. Where a fence is constructed, adequate stock 

gates or stock passes, as necessary, shall be provided to 

make land on either side of the highway usable for 

livestock purposes. 

(2) The department shall erect a fence in every 

high-hazard area as promptly as possible, and the cost of 

such construction is an expenditure for the enforcement 

of federal-aid highway safety programs. Gates, stock 

underpasses, water facilities, and cattle guards may be 

installed where necessary to make the land on either side 

of the highway usable for livestock purposes or where a 

public right-of-way intersects the state highway. 

The court determined that the area was not "open range" within the 

meaning of 5 60-7-102(1), MCA, because it lies within a horse herd 

district. Furthermore, the segment of 1-90 where the accident 

occurred is not a high hazard area as defined in S 60-7-102(2), 

MCA; the highway is not part of the primary highway system nor has 

the segment been designated as a high hazard area. As a result, 

the court determined that 5 60-7-103, MCA, did not require the 

State to erect a fence along the interstate. 

Section 60-5-105(1), MCA, provides in pertinent part: 

Design of controlled-access facility--entrance and exit 

restricted. (1) Each highway authority may so design any 

controlled-access facility and so regulate, restrict, or 

prohibit access as to best serve the traffic for which 

the facility is intended. 

The District Court determined that this provision was permissive, 

and therefore, did not impose a duty on the State. 

Appellants do not contend that the District Court erred in 
construing and applying 11 60-7-103 and 60-5-105(1), MCA. Nor do 

appellants cite other statutory authority establishing a duty by 

the State to prevent livestock from wandering onto the interstate. 

Deane contends, however, that once the State voluntarily 

constructs a fence along the highway right-of-way, as a controlled 

access facility under g 60-5-105(1), MCA, the State is required to 

exercise ordinary care in its construction and maintenance. The 

record reflects that the State did not "voluntarilyu construct the 

fence. Rather, the State erected the fence along the interstate 

highway right-of-way as a precondition for receiving federal funds. 

We have previously stated that g 60-5-105 (I), MCA, provides 

that the State may--not shall--restrict or prohibit access. Big 

Man v. State (1981), 192 Mont. 29, 36, 626 P.2d 235, 239. In & 

Man, we determined that the statute's permissive language did not 

require, or impose a duty on, the State to erect a fence to prevent 

access by pedestrians to a controlled access highway. While the 

specific facts on which our determination in Biq Man was based are 

distinguishable, no provision in the statute imposes a duty to 

erect a fence for any purpose. 

Deane cites Stewart v. Standard Publishing Co. (1936), 102 

Mont. 43, 55 P.2d 694, to support his position that once the State 

constructs a fence under g 60-5-105, MCA, it owes a duty to the 

motoring public, who rely on the State's construction and 

maintenance of the fence. 

"[Wlhere a person undertakes to do an act or discharge a 

duty by which the conduct of another may be properly 

regulated and governed, he is bound to perform it in such 

a manner that those who are rightfully led to a course of 

5 
conduct or action on the faith that the act or duty will 

be duly and properly performed shall not suffer loss or 

injury by reason of negligent failure so to perform it." 

Stewart, 55 P.2d 696, quoting 45 C.J. 650. 

Even if the State's construction of the fence could be 

characterized as a discharge of Deane's duty to prevent the horse 

from wandering onto the highway, the rationale in Stewart provides 

no basis for imposing a duty on the State. Deane has not alleged 

or in any way established that in driving on the highway, Yager 

relied on the State's construction and maintenance of the fence to 

prevent livestock from gaining access. We conclude that 35 60-7- 

103 and 60-5-105(1), MCA, do not impose a duty on the State to 

maintain the fence or prevent livestock from wandering onto the 

highway. 

The State's General Duty to Keep Hiqhways Reasonably Safe 

The appellants did not assert before the District Court that 

the State's general duty to keep highways reasonably safe imposed 

a duty on the State relative to livestock. On appeal, however, 

they urge us to extend the State's general duty to include a 

specific duty requiring the State to prevent livestock from 

wandering onto the highway. Appellants rely on a number of sources 

for the State's general duty. They contend that the State is 

required to maintain the fence along the right-of-way under its 

general duty to keep the highways reasonably safe, citing Buck v. 

State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214. The Yagers 

also base the State's general duty on its ownership of the right- 
of-way. They contend that property owners, including governmental 

entities, have a duty to maintain their property in a reasonably 

safe condition, relying on Kaiser v. Town of Whitehall (1986), 221 

Mont. 322, 718 P.2d 1341, and Limberhand v. Big Ditch Co. (1985), 

218 Mont. 132, 706 P.2d 491. Additionally, Deane relies on State 

ex rel. Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 

201, as a source for the general duty. 

While we do not disagree that the State has a general duty to 

keep highways in a reasonably safe condition, we decline to expand 

that duty to impose a new duty to prevent livestock from reaching 

interstate highways. Montana has been, and continues to be, an 

open range state. See State ex rel. Martin v. Finley (1987), 227 

Mont. 242, 738 P.2d 497. Under the open range doctrine, neither 

the State nor livestock owners have a duty to prevent livestock 

from wandering onto roadways. However, due to the increase in 

motor travel and in an effort to protect the motoring public, the 

Montana legislature has passed two carefully crafted exceptions to 

the doctrine. Id. The State Department of Highways is required to 

fence certain rights-of-way pursuant to 55 60-7-101 et seq., MCA. 

Sections 60-7-201 et seq., MCA, make it unlawful for a livestock 

owner to allow livestock to graze or occupy certain rights-of-way. 

As discussed above, the District Court determined that S 60-7-103, 

MCA, did not impose a duty on the State to fence livestock off the 

highway on the facts before it; appellants do not argue otherwise. 

In Martin, we declined to impose duties on a livestock owner 

which were not specifically created by the Montana legislature via 
statutory provisions governing fencing of the open range. There, 

the State and others sought to enjoin livestock owners from 

allowing livestock to wander beyond their property. The plaintiffs 

claimed that the wandering livestock constituted a public nuisance 

pursuant to 5 45-8-111, MCA, by interfering with the enjoyment of 

their property and posing a hazardous driving condition. We 

discussed the open range doctrine and set forth the statutory 

exceptions which impose liability on livestock owners for certain 

negligent conduct relating to their livestock and require the State 

to fence certain rights-of-way. We concluded that neither of the 

two flcarefully craftedtt statutory exceptions to the open range 

doctrine required the livestock owner to restrain his livestock and 

that case law imposed no such duty. Martin, 738 P.2d at 498-99. 

As a result, we declined to apply the general public nuisance 

statute to impose an additional duty not provided for in the 

specific open range provisions. 

We reach the same result here. We decline to apply the 

Staters general duty to keep its property in a reasonably safe 

condition, as articulated in Kaiser and Limberhand, or its general 

duty to keep its highways in a reasonably safe condition, as 

enunciated in Buck and BYorth, to specifically require the State to 

prevent livestock from wandering onto the interstate highway. 

Where the Montana legislature has acted to define the duty of the 

State relative to livestock on roadways, we will not impose an 

additional duty, the source of which is extraneous to the statutory 

provisions governing the fencing of the open range, 
Appellants contend that the District Court misapplied in 

determining that the State's general duty did not impose a duty on 

the State to maintain the fence. The court acknowledged that the 

State's general duty to keep highways in a reasonably safe 

condition extended to the paved portions of the roadway and to the 

shoulders and adjacent parts of the roadway under Buck. The court 

reasoned, however, that the fence was well off the paved or 

shoulder portions of the highway and, therefore, that the State had 

no duty to maintain it. We do not disagree with appellants' 

contention that the District Court failed to connect their argument 

on fencing to the "adjacent parts" language in Buck. However, we 

find no basis in Buck to impose a duty on the State to maintain the 

fence. 

In Buck, the driver failed to negotiate a curve in the highway 

and went off the left hand side of the pavement. As the driver 

attempted to return the vehicle to the roadway, the vehicle 

collided with a bridge abutment. We concluded that the State's 

duty to keep its highways in a reasonably safe condition extended 

to the shoulders "and the adjacent parts thereof." Buck, 723 P.2d 

at 214. In relying on this language to support a duty by the State 

with regard to fencing, however, appellants fail to recognize that 

the extension of the State's general duty in Buck specifically was 

premised on the "common experience that vehicles may stray or 

swerve from the usual traveled portion" of the roadway. d. Here, 

Yager did not stray from the usually traveled path and encounter an 

unreasonably unsafe condition on an adjacent part of the roadway. 
Thus, the Buck language relied on by appellants is inapplicable 

here. 

Finally, appellants assert that the District Court erroneously 

relied on Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 

P.2d 1126, and Ambrogini v. Todd (l982), 197 Mont. 111, 642 P.2d 

1013, to support its determination that the State's general duty 

did not require it to prevent livestock from gaining access to the 

highway. Those cases are, indeed, distinguishable on their facts 

from the present case and, therefore, are not controlling on the 

issue of the State's duty to prevent livestock from wandering onto 

the particular roadway here. Whitfield and Ambroqini do reflect, 

however, our consistent refusal to impose a duty on the State or 

livestock owners relative to fencing livestock off roadways that is 

not specifically created by the legislature. 

Montana Department of Hiqhways Maintenance Manual 

Section 3.110 of the Montana Department of Highways 

Maintenance Manual provides: 

The major portion of the highway right of way has 

been fenced either by the adjoining landowner or by the 

state. The maintenance of this fence is detailed in the 

right of way agreement. On Interstate highways, however, 

the fence and its maintenance are the responsibility of 

the Department of Highways. Highway fences may be 

important as any other safety device on the highway and, 

thus, so are their maintenance. Placement of a fence not 

only outlines the limits of the right of way, but also 

keeps humans and animals away from hazardous areas. 

Careful inspection and routine maintenance should not be 

neglected. 

The District Court ruled that the maintenance manual imposed no 

duty on the State to erect fences. The court determined that 
violations of the manual provide evidence of negligence only after 

the existence of a legal duty has been established. 

The Yagers make a dual argument relating to the manual. 

First, they argue that the manual affirmatively imposes a duty on 

the State to maintain the fence, relying on Townsend v. State 

(l987), 227 Mont. 206, 738 P.2d 1274, and Hash v. State (lggl), 247 

Mont. 497, 807 P.2d 1363. Neither Townsend nor Hash holds, or 

infers in any way, that provisions of the maintenance manual impose 

a duty. 

Second, the Yagers assert that a violation of the maintenance 

manual is evidence of negligence and that negligence is a fact 

question for the jury, relying again on Townsend and Hash. On this 

basis, they argue that the District Court erred in granting summary 

judgment. Townsend and Hash do support the Yagers' contention that 

violations of the manual are evidence of negligence. Townsend, 738 

P.2d at 1276; Hash, 807 P.2d at 1366. However, the cases do not 

preclude summary judgment in the present case. 

The existence of a duty was not at issue in either Townsend or 

Hash; the State's general duty to keep highways in a reasonably 

safe condition was applicable to the facts of those cases. Under 

those circumstances, we concluded that proof of the State's failure 

to comply with the manual was evidence of negligence. Here, 

appellants have not established the existence of a legal duty by 

the State to erect or maintain fences along the interstate highway 

to prevent livestock from gaining access. Thus, the question of 

whether the State breached its duty, to which violations of the 
manual as evidence of negligence properly could be addressed, 

simply does not arise in this case. 

We conclude that the highway manual does not impose a duty on 

the State to maintain the fence. Absent the existence of a legal 

duty, the manual cannot be used as evidence that the State 

negligently maintained the fence. 

Riqht-of-Way Purchase Aqreement 

The Yagers' final contention is that the State assumed a duty 

to maintain the fence when it purchased the right-of-way. In 

support of this contention, the Yagers appended documents entitled 

Highway Right of Way Easement and Agreement to Fence to their brief 

opposing summary judgment in the District Court, and to their brief 

to this Court. The District Court did not consider the appended 

documents; nor did it address whether the State assumed a duty to 

maintain the fence when it purchased the right-of-way. 

The Yagers contend that the documents were properly before the 

District Court because they had been obtained from the Highway 

Department during discovery. However, when addressing a motion for 

summary judgment, a district court considers only discovery that is 

on file. Rule 56(c), M.R.Civ.P. The Yagers failed to file the 

documents; on that basis, the District Court's failure to address 

them or the issue for which they were appended was appropriate. We 

join the District Court in declining to address an issue lacking 

proper support in the record. 

Appellants have failed to cite any authority imposing a duty 
on the State to prevent livestock from wandering on, or to erect or 

maintain a fence along, the section of the interstate highway where 

the accident occurred. Absent a duty, there can be no negligence. 

We hold that the District Court did not err in granting the State's 

motion for summary judgment. 

Affirmed. 

We Concur: 

A~~,P 

Chief Justice 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

Plaintiffs filed a complaint in which they alleged that the 

State of Montana had a duty to maintain fences and cattle guards 

which were built by the State on State property to protect 

motorists on Interstate 90 from wandering livestock. Plaintiffs 

alleged that the State was negligent by failing to maintain these 

fences and cattle guards and that plaintiff Elroy Yager was injured 

as a result of the State's negligence. The State denied that it 

was negligent in its answer. However, no evidence has been offered 

by the State, by affidavit or otherwise, which would controvert 

plaintiffs' allegation of negligence. The District Court's order 

of summary judgment, and this Court's opinion af f inning that order, 

are based simply on the conclusion that the State had no duty to 

maintain its own property in a way that would prevent an 

unreasonable risk of injury to others. 

The majority's conclusion is wrong as a matter of law for 

several reasons. 

First, the State has the same duty that all private property 

owners have by statute in Montana to act reasonably in the 

maintenance of its property. Second, the State assumed a duty by 

adopting the Uniform Maintenance Manual which required that it 

erect and maintain the fences which were the subject of this suit. 

Finally, the State assumed the duty to build and maintain the fence 

and cattle guard in question when it accepted federal funding for 

the construction of Interstate Highway 90, and it agreed as a 
condition to that funding to build and maintain the protective 

devices in question. 

DUTY TO EXERCISE ORDINARY CARE 

Article 11, section 18, of the Montana Constitution provides 

in relevant part that: 

The state . . . shall have no immunity from suit for 

injury to a person or property, except as may be 

specifically provided by law by a 2/3 vote of each house 

of the legislature. 

Section 2-9-102, MCA, provides that: 

Every governmental entity is subject to liability 

for its torts and those of its employees acting within 

the scope of their employment or duties whether arising 

out of a governmental or proprietary function except as 

specifically provided by the legislature under 

~rticle 11, section 18, of the Constitution of the State 

of Montana. 

It is clear, then, that unless specifically prohibited by the 

Legislature, the State is liable to the same extent that a private 

individual would be liable for its negligence as defined in the 

common law. Under the common law of Montana, we have previously 

held that statutory obligations give rise to duties which, if 

breached, form the basis of a common law cause of action. For 

example, § 27-1-701, MCA, provides that: 

Except as otherwise provided by law, 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. 

In Limberhand v. &Ditch Company (1985), 218 Mont. 132, 144-45, 

706 P.2d 491, 498-99, we held that this statute imposed a duty on 
land owners to use ordinary care in the management of their 

property so as not to create an unreasonable risk to those who 

could be foreseeably injured by their failure to do so. According 

to our Constitution and the statutory authority previously cited, 

the State had the same duty to maintain the fence and cattle guard 

that it constructed on the right-of-way that it owned. The 

majority opinion fails to discuss why the duty imposed by 

5 27-1-701, MCA, applies to every private person in this State, but 

not to state government itself. 

HIGKWAY MAINTENANCE MANUAL 

As pointed out in the majority opinion, the State of Montana * s 

own highway maintenance manual provides that it is the State's 

responsibility to maintain fencing along interstate highways. The 

manual even points out exactly why it is important to maintain 

fences. It provides that '1 [p] lacement of a fence not only outlines 

the limits of the right of way, but also keeps humans and animals 

away from hazardous areas. Careful inspection and routine 

maintenance should not be neglected." 

However, the majority dismissed the obligation created by the 

State's own maintenance manual by concluding that even though 

failure to comply with the maintenance manual is evidence of 

negligence, the manual did not create any duty. 

It is true that we have specifically held that llviolations of 

the Maintenance Manual provided evidence of negligence." Towmend 

v. State (l987), 227 Mont. 206, 209, 738 P.2d 1274, 1276. However, 
it is a non sequitur to conclude that there can be evidence of 

negligence without a duty. We have previously held that a duty is 

a prerequisite for finding negligence. In Roy v. Neibauer (1981) , 191 

Mont. 224, 226, 623 P.2d 555, 556, we held that: 

It is an elementary principle of law that before a 

claim for relief can be made against a defendant for 

negligence, the existence of a duty by the defendant to 

the plaintiff must be shown, along with the breach of 

that duty and a resulting injury. 

If there has to be a duty and a breach of duty before there 

can be a claim of negligence, how can failure to comply with the 

maintenance manual be evidence of negligence, but no basis for 

establishing a duty? In its effort to protect the State from 

accountability for its negligence in this case, the majority's 

opinion is logically inconsistent with the majority's previous 

decisions. 

DUTY UNDER FEDERAL LAW 

The majority briefly reviews State statutory law which imposes 

a duty to fence highways, but concludes that since those statutes 

were not applicable to the area where this action occurred, there 

was no statutory duty imposed on the State to protect motorists on 

this highway from wandering livestock. However, I do not 

understand why the majority's review of statutory obligations is 

limited to state law. What rational distinction is there between 

state statutes which impose a duty to fence highways and federal 

statutes which impose the same duty? 

The State of Montana concedes, in its appellate brief, that 

the area where this accident occurred was originally fenced and 
protected by the State Highway Department because the State was 

required to do so by federal law. In its brief, the State concedes 

that: 

While state law is permissive regarding Interstate 

fencing, the primary if not exclusive reason that these 

highways are fenced is that fencing is required by the 

Federal government as a precondition for receiving 

critical construction funding. A complete discussion of 

the applicable Federal statutes and regulations would be 

complicated and lengthy and is unnecessary here. It is 

sufficient to note that Federal law requires states to 

comply with Federal standards for design (23 U.S.C. 

§§ 106 and 109), construction (23 U.S.C. 5 114), and 

maintenance (23 U.S. C. 5 116) of Interstate highways, and 

for inspections and approvals to insure compliance. 

The statutes referred to in the State's brief are part of the 

Federal-Aid Highway Act, 23 U.S.C. 55 101 through 160 (1958). A 

more complete explanation ofthe controlling provisions is found in 

Daye v. Commonwealth of Pennsylvania (1972) , 344 F. Supp. 1337. That court 

explained that: 

Section 106(a) provides for the submission by the 

state and approval by the United States Secretary of 

Transportation [Secretary] of surveys, plans, 

specifications and estimates for each proposed project. 

Section 109(a) provides that the Secretary shall not 

approve the plans and specifications unless they are 

conducive to traffic needs, safety, durability and 

economy. Section 109(d) provides that the location of 

highway signs shall be subject to the approval of the 

State Highway Department with the concurrence of the 

Secretary. Section 109(e) provides that no funds shall 

be approved unless proper safety protective devices 

complying with certain safety standards approved by the 

Secretary are installed. Section 114(a) provides that 

highway construction shall be under the supervision of 

the State Highway Department, subject to the inspection 

and approval of the Secretary. Section 116(a) provides 

that it is the duty of the state to maintain the 

highways, and Section 116(c) provides that if the highway 

is not being properly maintained, the Secretary may 

withhold approval of further projects. 
Daye, 344 F. Supp. at 1347. 

The State cites Daye for the principle that these federal 

statutes do not create a duty on the part of the State to construct 

and maintain its fences and protective devices. However, I do not 

agree with that interpretation of Duye. The Federal District Court 

simply found that the statutes in question did not give rise to an 

independent private cause of action which was in contravention of 

Pennsylvania's immunity statutes, However, it is clear that the 

statutes create a duty on the part of the State to comply with 

federal requirements as a condition to federal funding, and the 

State concedes that those requirements included constructing and 

maintaining the fences which are the subject of plaintiffs1 

complaint. 

Finally, it appears to me that the majority opinion is based 

on several false premises. The Court concluded that 1 60-7-103, 

MCA, which requires fencing ofthe right-of-way constructed through 

open range areas was not applicable because the location where this 

accident occurred was within a horse herd district. However, the 

majority then proceeds to justify its decision based upon its 

conclusion that "Montana has been, and continues to be, an open 

range state." They hold that ml[u]nder the open range doctrine, 

neither the State nor livestock owners have a duty to prevent 

livestock from wandering onto roadways. Why does the majority 

rely on the fact that this is a herd district for purposes of 

rejecting plaintiffst claim that the State had a statutory duty to 
fence, and then rely on an inconsistent conclusion that Montana is 

an open range state when it declines to impose a common law duty to 

maintain the State's fences? 

Likewise, the majority concludes that since the Montana 

Legislature has not imposed a duty to fence the particular 

right-of-way where this accident occurred, we should not impose 

that duty. What about the duties imposed by the federal government 

and by the Department of Highways itself? 

To me, this claim involves simple issues. The State, by 

statute, had a duty to maintain its property, including its fence 

and cattle guard, in a condition that would have prevented 

unreasonable risk of harm to others, including motorists on the 

interstate highway. Plaintiffs alleged that it failed to do so and 

that Elroy Yager was injured as a result of that negligent 

omission. The State has offered no evidence to the contrary, 

therefore, summary judgment should have been denied. If the 

statutory duty imposed on everyone in Montana to exercise 

reasonable care in the maintenance of their property is not a clear 

enough creation of a duty for the majority, then certainly the 

obligations imposed by the Highway Department's own maintenance 

manual, or the commitment made by the State, pursuant to federal 

statute, in order to obtain federal highway funds, create 

additional duties. 

I am at a loss to find any justification for the majority 

opinion. If the State was not negligent, or if the State's 

negligence was not a cause of injury to Mr. Yager, then our laws 
should protect the State from liability. However, if the State was 

negligent, and its negligence caused harm to Mr. Yager, then simple 

fairness and justice require that the State be accountable for its 

conduct. It is beyond my comprehension why any court would go to 

the lengths that this Court has gone to in an effort to allow the 

State to avoid accountability for its negligent omissions. 

By its reliance on statutes which are irrelevant, and prior 

case law which is not on point, the majority has constructed what 

appears at first glance to be a rational justification for denying 

recovery in this case. The question that I have a difficult time 

understanding is to what justifiable purpose is that effort 

directed? 

For these reasons, I dissent from the majority opinion. I 

would reverse the judgment of the District Court.