No. 01-554
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 172
JULIO MADRID,
Plaintiff and Appellant,
v.
ZENCHIKU LAND AND LIVESTOCK,
Defendant and Respondent.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Loren Tucker, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William P. Joyce, Robert J. Whelan, Joyce & Starin, Butte, Montana
For Respondent:
Randall G. Nelson, Nelson Law Firm, Billings, Montana
Submitted on Briefs: January 17, 2002
Decided: July 31, 2002
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Appellant Julio Madrid (Madrid) appeals an order of the Fifth Judicial District Court,
Beaverhead County, granting summary judgment to Respondent Zenchiku Land and Livestock
(Zenchiku). We reverse and remand for a determination of damages.
¶2 We address the following issue on appeal: Did the District Court err in holding that §
81-4-215, MCA, does not impose strict liability on owners of trespassing livestock?
I. FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 1996, the Huntley Ranch (Huntley) employed Madrid as a ranch hand. On or about May
26, 1996, a bull owned by Zenchiku, an adjoining ranch, was discovered on Huntley property. A
Zenchiku employee named Gary James (James) came to retrieve the bull. After failed attempts to
herd the bull through a gate, James, Madrid, James’ wife and one other Huntley employee attempted
to put the bull in a trailer. Although the bull got in the trailer, when James went to close the doors,
the bull came out of the trailer and charged at Madrid, who was sitting on a horse about 30 feet
behind the trailer. When the bull hit the horse, Madrid was knocked off and the bull went after him
on the ground. Madrid suffered various injuries from this encounter which gave rise to this cause of
action for strict liability in trespass against Zenchiku as owner of the bull.
¶4 Before trial, both parties moved for summary judgment regarding whether Zenchiku was
strictly liable under § 81-4-215, MCA. District Court Judge Robert J. Boyd granted summary
judgment to Zenchiku and dismissed the strict liability in trespass count of Madrid’s complaint,
holding that the statute did not provide for strict liability. Subsequently, this Court issued
Larson-Murphy v. Steiner, 2000 MT 334, 303 Mont. 96, 15 P.3d 1205, which extensively discussed
the history of open range law and the liability for damages caused by livestock. As a result of this
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opinion, Madrid moved for reconsideration of the previous order granting summary judgment to
Zenchiku. Because Judge Boyd passed away, Judge Loren Tucker assumed oversight of the case.
Judge Tucker agreed with Judge Boyd and denied Madrid’s motion for reconsideration. Madrid now
appeals from both orders.
II. STANDARD OF REVIEW
¶5 We review a trial court's ruling on summary judgment de novo. Larson-Murphy, ¶ 20. In
this case, summary judgment was granted based on the interpretation of a statute. Interpretation and
construction of a statute is a matter of law. Clover Leaf Dairy v. State (1997), 285 Mont. 380, 389,
948 P.2d 1164, 1169; § 26-1-201, MCA. We review a trial court’s conclusions of law to determine
whether its interpretation is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont.
459, 469, 898 P.2d 680, 686.
III. DISCUSSION
¶6 Did the District Court err in holding that § 81-4-215, MCA, does not impose strict
liability on owners of trespassing livestock?
¶7 Although § 81-4-215, MCA, was originally enacted in 1887, we have not had occasion to
directly apply the standard of liability of a claim brought under this statute. Rather, this statute has
only been discussed in its relation to other statutes; in contrast to claims not brought under it; or in
relation to the exception to the statute for intentional conduct. See e.g. Larson-Murphy, ¶¶ 41-69;
State v. Blakely (1979), 181 Mont. 118, 122, 592 P.2d 501, 503; Monroe v. Cannon (1900), 24 Mont.
316, 326, 61 P. 863, 866.
¶8 Section 81-4-215, MCA, entitled “Liability of owners of stock for trespass” reads:
If any cattle, horses, mules, asses, hogs, sheep, llamas, alpacas, bison, or other
domestic animals break into any enclosure and the fence of the enclosure is legal, as
provided in 81-4-101, the owner of the animals is liable for all damages to the owner
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or occupant of the enclosure. This section may not be construed to require a legal
fence in order to maintain an action for injury done by animals running at large
contrary to law.
In both of its orders, the District Court held that this section does not allow for strict liability.
Rather, in the first order, the court held that the language “is liable for all damages” was “only a
reference to the measure of damages to be considered by the Court and adds no greater degree of
liability on the owner of a trespassing animal.” The second order held that “[t]he open range
concept is directly contrasted with strict liability,” and that our intervening decision in
Larson-Murphy did not require a change in the District Court’s first order because Larson-Murphy
did not address the relationship between adjoining landowners. Finally, while neither order
expressly stated that the statute provides for a negligence standard, the language of both orders
implies that a negligence standard applies because both orders state that strict liability does not
apply.
¶9 Madrid asserts that the District Court erred in holding that § 81-4-215, MCA, does not
provide for strict liability. He bases his argument on the plain language “is liable for all damages”
contained in the statute. He also argues that the history and policy of the open range doctrine
illustrate that the Legislature intended to enact a strict liability standard.
¶10 Zenchiku asserts the District Court correctly granted summary judgment because the statute
provides for a negligence standard and further asserts that a strict liability interpretation would be a
new development in Montana law. It also argues that strict liability is inappropriate because the
definition of a legal fence is one which would not provide an absolute barrier against bulls or cows
entering enclosed property and because cattle routinely jump fences. Zenchiku also argues that strict
liability is inappropriate in the face of an owner’s reasonable attempts to keep cattle fenced in open
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range country. Zenchiku further asserts that the cooperative relations between these adjoining
owners, mutual efforts by both ranches to keep bulls from going onto the other’s property, and a
fence for which costs and maintenance are a shared responsibility should all provide for a shared
negligence standard. Zenchiku also argues that trespass does not necessarily imply strict liability,
but can incorporate the concept of fault. Finally, in addition to its negligence argument, Zenchiku
also argues that the fence at issue here does not fit the requirements of the statute and that
consequently, Madrid does not meet the elements required by the statute to receive damages.
¶11 As mentioned above, we have not had occasion to directly address the standard of liability
provided for in § 81-4-215, MCA, as most of our previous cases involving livestock trespass concern
intentional trespass onto unenclosed land. However, we recently reviewed the history of open range
law in Larson-Murphy. While that case did not consider the situation of adjoining landowners
presented here, Larson-Murphy did explain how § 81-4-215, MCA, relates to the general framework
of the open range doctrine. To briefly restate the relevant discussion in Larson-Murphy, under
English common law an owner of livestock has the burden to fence in livestock because that owner
is strictly liable for any damages caused by their livestock. In contrast, under the open range
doctrine, owners of livestock do not have to fence in their livestock because they are not generally
liable for damage caused by those livestock. Rather, if another landowner wants to recover for
damages caused by trespassing livestock, that landowner has the burden to fence out trespassing
livestock. Larson-Murphy, ¶¶ 34-44, 69, 84, 86.
¶12 Larson-Murphy noted that this change occurred because of the vast land area required to
graze livestock in the arid western United States. As a result, the open range doctrine changed the
English common law by shifting the burden of building fences from livestock owners to those who
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would want to keep livestock out, namely farmers. Larson-Murphy, ¶¶ 38-39. We noted in
Larson-Murphy that the intent of § 81-4-215, MCA, was to codify this change. Larson-Murphy, ¶¶
40, 69, 84. See also Blakely, 181 Mont. at 122, 592 P.2d at 503 (§ 81-4-215, MCA, provides a civil
remedy for trespassing cattle); Montgomery v. Gehring (1965), 145 Mont. 278, 283, 400 P.2d 403,
406 (“One releasing his livestock onto lands where he has a right to do so is under no duty to restrain
them from entering another's unenclosed land.”); Hughey v. Fergus County (1934), 98 Mont. 98,
101-02, 37 P.2d 1035, 1036; Fant v. Lyman (1889), 9 Mont. 61, 62, 22 P. 120, 121; Smith v.
Williams (1874), 2 Mont. 195; Ryan M. Archer, Searching for the Montana Open Range: A Judicial
and Legislative Struggle to Balance Tradition and Modernization in an Evolving West, 63 Mont. L.
Rev. 197, 203-04 (2002) (the “essence of this statute remains preserved in the current Montana Code
Annotated.”). Therefore, we agree with Madrid that the intent of § 81-4-215, MCA, is to follow the
open range doctrine by providing a strict liability remedy for trespassing livestock to landowners
who enclose their property with a legal fence.
¶13 Zenchiku argues that since the open range doctrine changed English common law, what
changed was the standard of strict liability. We disagree. Rather, the discussion in Larson-Murphy
makes clear that the standard of strict liability remained and the only thing that changed was who
had the burden to fence in order to gain protection under the law.
¶14 In addition to the history and policy behind § 81-4-215, MCA, the plain language of the
statute indicates a strict liability standard because it states the owner of the livestock “is” liable. In
contrast, in Ambrogini v. Todd, we held that language such as “may,” “permit,” or “allow” provides
for a negligence standard. Ambrogini v. Todd (1982), 197 Mont. 111, 119-20, 642 P.2d 1013, 1018,
overruled on other grounds by Larson-Murphy, ¶ 79. No such language is present in this statute.
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Further, to interpret “is liable” as a negligence standard would defeat the purpose of the statute. As
Madrid points out, if the standard under the statute were negligence, a potential plaintiff does not
gain anything by building a fence because that plaintiff could bring a negligence action with or
without a fence.
¶15 Having determined that the statute provides for a strict liability standard, we next address
Zenchiku’s argument that Madrid did not meet the elements required in order to recover under the
statute. Zenchiku asserts that the fence at issue here does not meet the statutory requirements
because there was no evidence that Huntley constructed or maintained the entire fence which
enclosed the area of the Huntley ranch where the incident occurred and which separates the Huntley
and Zenchiku ranches. Further, Zenchiku asserts that maintenance of the fence is shared by Huntley
and Zenchiku. Zenchiku makes this argument despite its statement in its brief on appeal that the
“sole and narrow issue on appeal is whether Mont. Code Ann. § 81-4-215 imposes a standard of
strict liability.”
¶16 In its orders regarding interpretation of the statute, the District Court did not consider any of
these issues regarding the fence. Rather, the court stated that “[t]he parties agree that the land was
enclosed by a legal fence.” Therefore, the court did not consider any of the issues regarding the
fence which Zenchiku now raises.
¶17 The statute itself does not state any requirements regarding who builds or maintains the
“legal” fence. See also § 81-4-101, MCA. Rather, the language of the statute makes clear that
liability is imposed if the fence is legal, the animal trespassing or breaking into the enclosure is not
supposed to be there, and an owner or occupant entitled to be in the enclosure incurs damages.
Therefore, under the terms of the statute, it is irrelevant who builds or maintains the “legal fence.”
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Rather, relative liability is determined depending on whether an animal broke into an enclosure and
whether someone is an owner or occupant.
¶18 In this case, there is no dispute that Zenchiku’s bull broke into an enclosure and no dispute
that Madrid was a proper occupant of the enclosure. Further, Zenchiku does not dispute that the
fence here meets the definition of a legal fence in § 81-4-101, MCA. Therefore, Madrid met all the
requirements needed to recover under § 81-4-215, MCA, and is entitled to damages because
Zenchiku is strictly liable for the actions of its trespassing bull.
¶19 Finally, in making this holding, we recognize that a statute written over a century ago may no
longer fit the cooperative practices for building fences or managing stray livestock referred to by
Zenchiku. Further, when the open range doctrine was established and codified by § 81-4-215, MCA,
much of the land was unfenced. Therefore the statute did not contemplate the current situation in
which large ranches are entirely enclosed. However, we must interpret the statute as written and
must give effect to the statute’s original intent. Any other action is properly left to the Legislature.
IV. CONCLUSION
¶20 Because the District Court erred in holding that § 81-4-215, MCA, does not provide for strict
liability, and because Madrid met all the requirements of the statute, we reverse and remand for a
determination of damages.
/S/ JAMES C. NELSON
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
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Chief Justice Karla M. Gray specially concurring.
¶21 I specially concur in the Court's opinion. I strenuously dissented from the Court's decision in
Larson-Murphy and still believe it was incorrect. The Court having stated the law in that case,
however, I am as bound by it as are all other Montanans. The Court properly incorporates Larson-
Murphy into its discussion and analysis in the present case.
¶22 Moreover, I agree entirely with the Court's interpretation of the plain language of § 81-4-215,
MCA. To vary it in response to Zenchiku's arguments would be to overstep both our constitutional
obligation to refrain from exercising power properly belonging to the Legislature and our statutory
obligations with regard to the interpretation of statutes. See Art. III, Sec. 1, Mont. Const.; §§ 1-2-
101 through 1-2-208, MCA.
¶23 Addressing several of Zenchiku's specific arguments, I offer the following observations.
Regarding the assertion that a strict liability interpretation would be a new development in Montana
law, I need state only that the Court and I totally agree. The reason, as the Court points out, is that
the statute at issue here has not been interpreted by this Court during its 115-year history. Such
interpretations, when a new matter is raised, often result in "a new development in Montana law."
Next, Zenchiku's several arguments that strict liability is "inappropriate" should be addressed to the
Legislature which created § 81-4-215, MCA, not to this Court. The same is true of Zenchiku's
assertion that cooperative relations, mutual efforts and shared responsibility for costs and
maintenance for the fence "should provide for a shared negligence standard." Such changes
in § 81-4-215, MCA, properly can be made only by the Legislature.
¶24 In sum, I join in the Court's opinion and result, notwithstanding my previous dissent in
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Larson-Murphy.
/S/ KARLA M. GRAY
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