On rehearing. This appeal is from a judgment of the district court for Toole county, where after trial of the cause the court, sitting without a jury, entered judgment for the defendant and awarded him damages as prayed in his cross-complaint.
The facts are these:
The plaintiff was the owner of land within the external boundaries of the Kevin Co-operative State Grazing District, but so far as the record discloses, he was neither a member nor permittee of that grazing district. The lands were unfenced. Defendant's horses were found by the plaintiff upon his lands and he gathered them up and impounded them. Notice was given the defendant as required by section 3379, Revised Codes. Defendant regained possession of the animals, after they had been in the plaintiff's custody for some time, under the provisions of the statute. The defendant admitted ownership of the horses, alleged that they were running at large upon the open range, and admitted that he had no permission from plaintiff to graze his horses upon the plaintiff's land; otherwise the answer was a general denial.
In his cross-complaint defendant alleged that the horses were unlawfully gathered from the open range and confined under plaintiff's control; that the horses were so negligently handled that they were injured to the extent of $3,840, and that some of the animals were missing when they were turned over to defendant by plaintiff. In its judgment the district court found that plaintiff had failed to establish his case, and that the allegations of defendant's answer and cross-complaint were true except as to the amount of damages, which the court fixed at $540. Objection was made, when the original judgment was entered, that the court had failed to make findings which were subsequently made, but which changed in no way the result. *Page 441
Plaintiff contends that since his land is within the boundaries of the district, even though not shown to be owned or controlled by the district and even though plaintiff is not shown to be a member, any entry on his land, though it is not fenced, by defendant's horses is a trespass for which he may impound them, as he has done.
Section 26 of Chapter 208, Laws of 1939, provides:
"(1) No person whether a member or non-member of a state[1, 2] district, shall graze stock within the external boundaries of a state district, or trail stock across, upon or into any range of a state district unless he shall first obtain a grazing permit or a crossing privilege from the state district; provided, that this provision shall not require any person to obtain a grazing permit to graze upon land owned or controlled by him if the stock so grazed is restrained from grazing upon or trailing across lands controlled by the state district. Any person violating the provisions of this Section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00).
"(2) If any stock grazes upon lands owned or controlled by a state district without the permission of the state district, such stock may be impounded for trespass and sold in the manner provided in Section 3379 of the Revised Codes of Montana, 1935."
It is readily apparent that plaintiff is without right to pursue the remedy provided in subdivision (2) of section 26. That subdivision applies only where stock grazes upon land owned or controlled by the district. In his brief on rehearing plaintiff specifically states his land is not either owned or controlled by the district. The statute contemplates that there may be land within the external boundaries of the state district not owned or controlled by it. Section 27 provides in part: "When any land is situated within the boundaries of a state district and is not leased or controlled by said district and not surrounded by a legal fence, [etc.] * * *." Subdivision 2 confers upon the district the right to impound trespassing livestock found on land owned or controlled by the district, without regard to whether or not the *Page 442 land is fenced or whether or not the animals merely stray upon the property or are driven upon it. It does not make section 3379, Revised Codes of 1935, applicable except to the extent that it adopts that section as the means by which the sale of impounded stock may be had.
Certainly this civil action may not be maintained by reason of[3] subdivision (1) of section 26. That subdivision provides a purely criminal remedy and without a question it applies to cases where stock is wilfully driven upon the property within the external boundaries of the district, either for the purpose of grazing the stock there or for the purpose of crossing the land with the stock. No civil remedy is contained in that section, nor is there anything in the Act as a whole which would indicate any intention on the part of the legislature to amend section 3379 so as to make mere presence upon this plaintiff's property wrongful within the contemplation of that section.
Much of plaintiff's argument is to the effect that the plaintiff ought to have the right to proceed as he has here done and that the manifest purpose of the Act is to furnish protection for his privately owned land within the external boundaries as well as the land owned and controlled by the district. He cites section 1 of the Act, which states that one purpose of the Act is to "* * * provide for * * * protection of dependent commensurate ranch properties as defined herein." He further cites section 11 of the Act, which requires persons owning or controlling livestock in the vicinity of the district to take notice of its external boundaries. Further reliance is had by plaintiff on section 27 of Chapter 208, which provides: "Farming lands lying within the external boundaries of a state district shall be protected by the owner or lessee to the extent of a legal fence as described in Subsection (1) of Section 3374 of the Revised Codes of Montana, 1935. The state district or its members shall not be liable for damages unless such farming lands are protected by a sufficient fence as described in this Section." It is his argument that the latter section, by inference, suggests that as to non-members and outsiders, the owner of farming land, which obviously would not *Page 443 be owned or controlled by the district, might maintain an action for damages even though the land is not fenced. We do not think that these provisions as set out above, nor the other general provisions of the Chapter, are sufficient to indicate any legislative intent to permit plaintiff to proceed as he has here done, and even if it could be said that the legislature may possibly have had in mind the proposition plaintiff here contends for, there are no operative words in the Act to bring about that result.
Since plaintiff may not avail himself of the provisions of[4] Chapter 208, supra, as against the defendant, the open range law applies, the land being unfenced and there being no evidence that the defendant herded his horses upon the plaintiff's land, or any evidence to bring the facts within the rule of Hill v. Chappel Bros., 93 Mont. 92,18 P.2d 1106. Since that is the case, the plaintiff is not entitled to any damages for the trespass of defendant's horses upon his land, nor is he entitled to any compensation for the care and the feed of the horses during the time he had them impounded.
The district court found generally on the matter of damages for the defendant. There is a conflict in the evidence as to the extent of these damages. The district court resolved this conflict in favor of the defendant, and there is evidence supporting the court's finding, both as to the fact of damage and as to the amount. This is true, also as to the finding that some of the horses and colts were missing at the time the animals were released.
A good many witnesses testified as to this matter of damages to the horses belonging to defendant. It is undisputed that there were over 200 horses in the herd impounded by the plaintiff. These included horses owned by other people as well as by defendant. It is also undisputed that there were a number of stallions in the herd and that this large herd of horses was kept corralled in small, dry corrals during a large part of the time they were in plaintiff's possession. Anyone familiar with horses, particularly range horses, knows that there must be some injury to them when held in a large herd by reason of the fighting and *Page 444 kicking that will ensue. In addition to the testimony of the defendant and other owners of horses impounded, disinterested witnesses who saw the horses while they were corralled testified to their poor condition and disinterested witnesses who saw the horses prior to the time they were taken up and immediately thereafter testified to the deterioration in their condition. Testimony was given as to the value of the horses at the time they were picked up by the plaintiff and their value at the time they were released. The testimony as to the injury done to the horses while they were being held by the plaintiff was all[5] controverted, but we, of course, adhere to the rule often stated by this court, that where there is substantial evidence to support the judgment of the trial court, even though it is controverted, we are bound by the lower court's determination of the facts.
The defendant testified that some eight head of horses and colts were not returned to him and a part of the damages consists of this loss. It is urged that the proof is insufficient to prove that this loss occurred while the herd was impounded. The horses were tallied when impounded. They were not tallied on the day on which the defendant regained possession of them. This was occasioned by the refusal of the plaintiff and Potter, the man who actually had possession of them, to corral them so that a tally might be made. The defendant took with him, the day on which he regained possession of the horses, the sheriff for the express purpose of making this tally. While it is true darkness set in while the horses were being driven back to defendant's ranch, he testified that they were kept well bunched up and on the move and that none escaped from the main herd. An actual count of the horses was made the next morning at defendant's ranch. We think the evidence sufficient to sustain the court's finding that eight of the animals were not returned to the defendant.
Under stipulation it was agreed that this case would determine[6] two others arising out of the same impounding but with different defendants and different horses. The plaintiff contends that the court erred in allowing witness fees for each of the three cases. The plaintiff moved to have the costs retaxed, *Page 445 and this motion was denied. We think the court erred in denying the motion. In this case the witnesses testified but once under a stipulation that the evidence would be used in all three cases. In a like case — Brown v. Sears, 23 Misc. 559,52 N.Y. Supp. 792 — the witnesses were allowed but one fee. We think this to be the proper rule. (See also, Gelfond v. Kirschenbaum, 249 A.D. 894,292 N.Y. Supp. 568, and 20 C.J.S., Costs, secs. 232, 233, p. 473.)
The cause is remanded to the district court with direction to retax costs, and the judgment will stand affirmed.
The opinion heretofore rendered herein on July 12, 1943, is ordered withdrawn and the above substituted in its place.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON and ADAIR concur.