Fant v. Lyman

• Citation: 22 P. 120,9 Mont. 61
• Parties: FANT v. LYMAN
• Decision Date: 03 August 1889
• Court: United States State Supreme Court of Montana

22 P. 120

9 Mont. 61

FANT v. LYMAN

Supreme Court of Montana

August 3, 1889

Appeal from district court, Lewis and Clarke county.

Turner & Burleigh, for appellant.

Wade Toole & Wallace, for defendant.

DE WOLFE, J.

This was an action brought by the appellant (plaintiff) against the respondent for trespass for willfully and maliciously driving sheep on the land of appellant, and thereby causing them to consume and destroy the grass and verdure growing thereon. The answer denies any willful or malicious trespass and alleges that, if the sheep of defendant went on the land of plaintiff, they went in pursuit of food, and from their own instinct, and because there was no fence or other obstruction to prevent them from straying on said land. The cause was tried by a jury, which rendered a verdict for defendant, and on this verdict judgment was rendered against plaintiff for costs. A motion for a new trial was made and overruled, and from this order and the judgment the plaintiff appeals, and assigns as error the instructions given by the court, and the modification of instruction numbered 4 asked by defendant. The court, in substance, instructed the jury that if the sheep of the defendant the jury that if the sheep of the defendant strayed on the uninclosed lands of the plaintiff, or if they were driven ther for the purpose of pasturage, and not for the purpose of maliciously injuring said lands, the plaintiff could not recover in this action; that under the laws of this territory the defendant had the right to pasture domestic animals on uninclosed lands, and if plaintiff wished to prevent this, he could do so by inclosing his lands with a lawful fence. The foregoing appears to us a correct statement of the law applicable to the facts as alleged in the pleadings. Section 1119 of the fifth division of the Compiled Statutes subjects the owners of animals to liability for any damage done by them by breaking into the lands of another inclosed by a lawful fence. This section negatives the liability of the owner when animals lawfully at large, as in this instance stray on uninclosed lands in quest of food or pasturage. This is clearly within the rule damnum absque injuria, if injury arises to the owner of the land. The instruction asked by defendant, and refused by the court, related to exemplary damages, in case the jury found that defendant committed the acts complained of willfully and maliciously. The...