Miller v. Miller

• Decision Date: 26 October 1987
• Docket Number: No. 16390,16390
• Citation: 745 P.2d 294,113 Idaho 415
• Parties: Pete MILLER, Plaintiff-Respondent/Cross-Appellant, v. E. Paul MILLER, Defendant-Appellant/Cross-Respondent.
• Court: Idaho Supreme Court

Page 294

745 P.2d 294

113 Idaho 415

Pete MILLER, Plaintiff-Respondent/Cross-Appellant, v. E. Paul MILLER, Defendant-Appellant/Cross-Respondent.

No. 16390.

Supreme Court of Idaho.

Oct. 26, 1987.

Racine, Olson, Nye, Cooper & Budge, Chartered, Pocatello, for defendant-appellant/cross-respondent /cross-respondent E. Paul Miller; W. Marcus W. Nye, Pocatello, argued.

Hawley Troxell Ennis & Hawley, Pocatello, for plaintiff-respondent/cross-appellant Pete Miller; Thomas J. Holmes, Pocatello, argued.

BISTLINE, Justice.

In May 1984 the Bannock County Commissioners, pursuant to a petition, had formed a herd district which encompassed the Millers' land together with portions of BLM land. The herd district ordinance was in effect at the time the damages were caused by E. Paul Millers' grazing livestock.

E. Paul Miller and Pete Miller are brothers who own or lease adjoining lands in Bannock County; some of those lands also adjoin property owned by the Federal Bureau of Land Management (hereinafter BLM lands). Pete's initial action was filed in small claims court, where damages were claimed based on allegations of trespass by E. Paul's livestock during the summer of 1984. The damages claimed included 3,000 pounds of barley seed ruined by E. Paul's horses, approximately 27 acres of planted hay consumed or trampled by E. Paul's cattle, and compensation for pasturage of E. Paul's cattle. The small claims court awarded Pete a judgment of $2,032.80.

E. Paul appealed the decision of the small claims court to the district court, which held a trial de novo. In that forum, E. Paul argued that since a large portion of BLM ground was included in the herd district that the entire herd district ordinance was void. The district court rejected this argument holding that under I.C. § 25-2401 (1977) et seq., the herd district ordinance was invalid only as to the BLM land but was otherwise valid. The district court concluded that under the herd district laws E. Paul had the duty to properly fence the outside boundaries of his property to prevent his livestock from trespassing upon another's property and that E. Paul failed to do so. The district court initially awarded its judgment against E. Paul in the sum of $2,070.

On a motion to alter judgment, the district court reduced the damage award by $700, disallowing compensation for pasturing E. Paul's cattle on BLM land for which Pete had forage rights. The court determined that Pete did not prove the pasturage was depleted to such an extent that he was unable to graze his animals, or prove that he had suffered any damages as a result of E. Paul's animals eating the forage.

Both parties have appealed to this Court, where the following issues are raised: (1) did the district court err in declaring the herd district valid as modified by it; (2) did the district court err in its award of damages; and (3) was the denial of a garnishment of the wages of E. Paul's nonparty spouse proper?

I

As to the first issue, E. Paul argues that the district court erred in its conclusion that a valid herd district was created. The creation of a herd district is provided for in I.C. § 25-2402:

25-2402 (Supp.1987). Petition and requirements for district.--(1) A majority of the landowners in any area or district described by metes and bounds not including open range and who are also resident in, and qualified electors of, the state of Idaho may petition the board of county commissioners in writing to create such area a herd district. Such petition shall describe the boundaries of the said proposed herd district, and shall designate what animals ... it is desired to prohibit from running at large ...; and shall designate that the herd district shall not apply to nor cover livestock, excepting swine, which shall roam, drift or stray from open range into the district unless the district shall be inclosed by lawful fences....

(2) Notwithstanding any other provision of law to the contrary, no herd district established before or after July 1, 1983, shall:

(a) Contain any lands owned by the United States of America, and managed by the department of interior bureau of land management, or its successor agency, upon which lands the grazing of livestock has historically been permitted.

....

(3) Open range means all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam.

The record shows that specific parcels of BLM land are within the boundaries of the herd district. The district court's interpretation of § 25-2402 brought it to the conclusion that the herd district was "invalid to the extent that it includes any public lands administered by the BLM. However, the inclusion of BLM land in the description of the herd district does not invalidate the creation of the district where the Board had proper authority ... to create such a district." R., p. 10. This holding however, is at variance with the plain language of I.C. § 25-2402. The Board of Commissioners do not have authority to enact a herd district outside the dictates of I.C. § 25-2402. The statutory restrictions are very definite: "no herd district ... shall contain any lands owned by the United States of America, and managed by the department of interior, bureau of land management." The action of the Commissioners attempted to authorize that which the legislature has expressly forbidden and as such is invalid.

The district court based its holding on the case of Benewah County Cattlemen's Assoc., Inc. v. Board of County Commissioners of Benewah County, 105 Idaho 209, 668 P.2d 85 (1983). In Benewah:

the Board of County Commissioners of Benewah County enacted the ordinance in question here (No. 13) entitled 'Benewah County Livestock Control Ordinance,' which applies throughout Benewah County. The ordinance essentially prohibits the running at large of livestock, requires fencing around property upon which livestock is grazed, and provides criminal sanctions for violations. The ordinance expressly leaves unaffected civil liability arising from trespassing livestock. 105 Idaho at 211; 668 P.2d at 87.

The ordinance, so it was argued, was void since it attempted to exercise authority over incorporated cities within Benewah County which the Commissioners lacked authority to regulate. This Court held only that the ordinance was without force and effect within the limits of the incorporated cities but effective elsewhere throughout in the county.

The effect and applicability of Benewah can be readily distinguished from the case at bar. In Benewah the ordinance there in question was held to have been enacted pursuant to the grant of powers to the County, and thus not in conflict with the general laws, nor with Idaho Const., art. 12, § 2. Specifically, the Court's Benewah opinion stated:

The Idaho Constitution, art. 12, § 2 provides, in pertinent part: 'Any county ... may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.' The legislature in I.C. § 31-714 has elaborated on the constitutional grant of police power to counties, stating:

'[t]he board of county commissioners may pass all ordinances ... not repugnant to law ... such as are necessary or proper to provide for the safety, promote the health and prosperity, improve the morals, peace and good order, comfort and convenience of the county and the inhabitants thereof, and for the protection of property therein, and may enforce obedience to such ordinances with such fines or penalties as the board may deem proper....'

This Court, in interpreting the broad statutory and constitutional powers granted to county commissioners to enact ordinances in furtherance of police powers, stated in State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965), that:

'there are three general restrictions which apply to legislation under the authority conferred by [ID. CONST art. XII, § 2]: (1) the ordinance or regulation must be confined to the limits of the governmental body enacting the same, (2) it must not be in conflict with other general laws of the state, and (3) it must not be an unreasonable or arbitrary enactment.' 105 Idaho at 212, 668 P.2d at 88.

In Benewah the issue of the first restriction, whether the ordinance was within the limits of the Benewah County Commissioners, was addressed by the Court. In upholding the ordinance's validity the Court followed the cases of Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983), and Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949) which held under similar county commission enactments that "the fact that the regulation in question does not, in terms, exclude municipalities, does not make it invalid in the territory to which it is applicable." Hobbs, 104 Idaho at 207, 657 P.2d at 1075, Clyde Hess, 69 Idaho at 512, 210 P.2d at 802.

The actions of the Bannock County Commissioners, however, is more appropriately the concern of the second Clark restriction, i.e., whether the enactment is in conflict with other general laws of the state. In Benewah, the Court cited Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1979), for the proposition that the ordinance was not to be in conflict with the herd district statutes since the ordinance restricted activities in "open range" in an attempt to control livestock short of enacting a "countywide" herd district. ¹ 105 Idaho at 213, 668 P.2d at 89. The Bannock County Commissioners by ordinance purported to create a herd district which did contain parcels of BLM land within its boundaries. This was clearly in conflict with the provisions of I.C. § 25-2402(2)(a), and accordingly, was an invalid exercise of the commissioners' powers under Clark. The district court erred in upholding the validity of an ordinance exceeding the County Commissioners' authority.

The district court's modification of the herd...