Flynn v. Poindexter & Orr Livestock Co.

• Decision Date: 15 May 1922
• Docket Number: 4766.
• Citation: 207 P. 341,63 Mont. 337
• Parties: FLYNN ET AL. v. POINDEXTER & ORR LIVESTOCK CO. ET AL.
• Court: Montana Supreme Court

207 P. 341

63 Mont. 337

FLYNN ET AL. v. POINDEXTER & ORR LIVESTOCK CO. ET AL.

No. 4766.

Supreme Court of Montana

May 15, 1922

Appeal from District Court, Beaverhead County; Wm. A. Clark, Judge.

Action by Thomas Flynn and another against the Poindexter & Orr Livestock Company and another. From a judgment of nonsuit plaintiffs appeal. Affirmed.

Walsh Nolan & Scallon, of Helena, for appellants.

Callaway & Callaway, of Dillon, for respondents.

GALEN J.

This is an action to recover $2,100, alleged damages for the injury and destruction of certain grain in shock, belonging to plaintiffs, on their land, by reason of a large number of cattle breaking into plaintiffs' inclosed grain field feeding, and tramping upon such crops.

It appears that the plaintiff Rutledge leased from his coplaintiff certain lands in the valley of the Blacktail Deer creek, Beaverhead county, Mont., which were inclosed by fence, 150 acres of which were planted in oats; that such grain crop grown thereon had, on the dates complained of November 3 to 5, 1918, been harvested and shocked; and that the crop was owned jointly by the plaintiffs. The defendant corporation also owned lands in this valley, and was at the time engaged in the business of raising cattle, horses, and sheep; the plaintiff Flynn conducting like business. About 12 miles from the lands owned by the plaintiff Flynn and contiguous to lands owned by the defendant company, there was a body of unsurveyed public domain, open for the use of the public in stock grazing; and that on the 3d day of November, 1918, there were grazing thereon cattle in large number belonging to the plaintiff Flynn, to the defendant company, and to other residents of Blacktail Deer Creek Valley. Bert Orr was employed by the defendant company and was one of its directors and its manager, and on the date mentioned it is alleged that the defendants, being desirous of excluding from such public domain cattle other than those belonging to the defendant company, drove off the range, where they were pasturing, such cattle to the number of about 1,200 head, the property of the plaintiff Flynn and others, against the will of the owners and without their consent, and over protest, and moved them a distance of 15 miles along the public highway without feed or pasture, during the prevalence of a snowstorm, leaving them in a hungry condition on a portion of the plaintiff Flynn's land, adjacent to the field where the grain harvested and shocked was injured and destroyed by them. It is alleged that the defendant knew, or in the exercise of reasonable care should have known, that the cattle, left in the hungry condition in which they were, would break into the field of grain belonging to plaintiffs; that they were by the defendant so left without advice to the plaintiff as to their presence; and that, on the night of the 4th of November and the morning of the 5th, they broke into the inclosure containing the grain, and ate up and destroyed about 35 acres of grain.

By answer filed, the defendants admitted the corporate existence of the defendant company; that the defendant Bert Orr was in its employ and at the time was its manager and a member of its board of directors. Further it is admitted that the plaintiff Flynn and the defendant company were the owners of large numbers of cattle; that the plaintiff Flynn owned lands adjacent to the lands of the defendant company; and that contiguous to some of the lands owned by the defendant company "there is a body of unsurveyed public land open to the public without pay for grazing stock." All other allegations of plaintiffs' complaint are denied. By way of special defense it is alleged that, at the time stated in plaintiffs' complaint, the plaintiff Flynn and one Pat Laden were holding, in charge of their herders and employees, about 1,200 head of cattle in the valley of the Blacktail Deer creek, and attempting to pasture them upon about 300 acres of public domain, which was wholly insufficient; that they were so carelessly and negligently herded that they were permitted to break through the fences inclosing the lands of the defendant company, to overrun the same, and feed off the grass growing thereon; that the defendants demanded of the plaintiff Flynn that he take care of such cattle and prevent trespass by them on lands belonging to the defendant company, which the plaintiff Flynn failed, neglected, and refused to do.

It is then alleged by defendants, by way of "full and complete defense":

"That being otherwise unable to protect the fences and lands of the defendant company from the encroachments of said cattle, these defendants, as they had a right to do, gathered up said cattle so being in the charge of said plaintiff and those acting in conjunction with him, and drove the same down the county road through the valley of Black Tail Deer creek, a distance of some 10 miles, and left the same near the premises of the said plaintiff Flynn, and in the vicinity of the premises of said Laden. That the said plaintiff Flynn was present at the time said cattle were started from the lands of the defendant company, and well knew that the same were driven to and adjacent to his own premises in said valley, and that said cattle required the care and attention of their said owners, but knowing such facts said plaintiff Flynn made no effort whatever to care for the said cattle and made no effort to protect his own inclosures or the fences inclosing the lands of his coplaintiff Rutledge."

Issue was joined by plaintiffs' reply, wherein it is admitted that the plaintiff Flynn and Pat Laden were herding cattle on the public domain; that the cattle were being driven by defendants along the county road and were left near the premises of the plaintiff Flynn in a hungry condition. By way of further reply, plaintiffs deny that the fences of the defendant company were broken down by the cattle belonging to the plaintiff Flynn and his associates; that the public lands contiguous to defendants' lands embrace only 300 acres, and in this connection allege that such lands comprise several thousand acres. The allegations quoted above, set forth in defendants' answer as paragraphs IV and V, plead by way of full and complete defense, to the effect that the cattle were by the defendants driven down the county road a distance of about 10 miles and left in the vicinity of the premises belonging to the plaintiff Flynn, are admitted.

The case was tried to a jury, and at the conclusion of plaintiffs' case the defendants moved the court for a nonsuit, which was granted, and judgment thereupon entered for the defendants with their costs. The appeal is from the judgment.

But one question is presented decisive of the case, viz.: Did the court err in granting a nonsuit?

Thomas Flynn, one of the plaintiffs, testified on direct examination in part as follows:

"I live on Blacktail Deer creek, in Beaverhead county, Mont., about 7 miles south from Dillon. I have lived there over 40 years. My place is on both sides of Blacktail Deer creek. Blacktail Deer creek runs through about near the center of Blacktail Deer Creek Valley where I live; I join fences with the Poindexter & Orr Company for about 2 1/2 or 3 miles. Blacktail Valley runs for 40 miles from Dillon up and down. It is not very thickly settled. It is settled pretty well down close to town; Poindexter & Orr Livestock Company owns it for about 18 or 20 miles of the creek on both sides. On the west side of the creek up until a few years ago since they took up dry farming, the Poindexter & Orr Livestock Company's possessions would not extend a mile on the west side of the creek any place. I range my cattle--Laden's and mine--on Blacktail on both sides of the creek. In late years Ernest Selway put a fence above so the cattle can't get across, but some gets across. There is some on both sides of the creek. Q. The range on the east side of the creek is known as what range? A. It is known as the Blacktail and Sweetwater. Q. Is that the west side? A. The west or southwest side. Q. The range on the west side is known as what? A. It would be the Blacktail and Sage creek. Q. How extensive is that range on the west side? How far does it extend? A. From the mouth of the canyon--the last place taken up--over to Sage creek, there is a strip of government land not less than six or seven miles wide. Q. In length what would it be? A. You could start in and go to the Centennial Valley on government land without being fenced in in any place for 40 miles. * * *

In 1918, I was engaged in farming, cattle raising, and horse raising. Along about the 3d of November, 1918, my cattle on the southwest side of Blacktail Deer creek was ranging from Jake Canyon up to Cottonwood and in the hills back towards the top of the range to Sage creek. At that time there were cattle on that range belonging to Pat Laden, and to Mr Keenan, and to Orr & Poindexter. About the 3d of November, 1918, there must have been all of 700 head of my cattle on this range. Some of these cattle were on that range all summer. As they kept coming in, I drove a lot of them up and put them on the public range. Some of them come back down as far as the Poindexter & Orr ranch, and Mr. Orr and two of his men took them and put them out on Smallhorn Canyon. I went after them and asked them what they did with the cattle, and Mr. Orr told me he put them out on Smallhorn Canyon, and that if they come there at any time in the future he would do the same thing with them. So I went after the cattle and rounded them up and took them back to my ranch, and then I took them up again on the range, and I hired a man by the name of Cozad to herd them back on the range and not let them come down. I had been herding these cattle up...