Williams v. Selstad

No. 88-190

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

1988

VICTORIA S. W I J J L I A M S and LARRY
D. WILI~IAMS,

Plaintiffs and Appellants,
-vs-

SPENCER 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, ~ i l l i n g s ,
Montana
For Respondent :

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

Submitted: October 11, 1988
Decided: December 13, 1988

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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
3 2 5 0 for each oFfense. Each c a 7 that
i1
 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.

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