Rea Bros. Sheep Co. v. Rudi

• Decision Date: 03 October 1912
• Citation: 127 P. 85,46 Mont. 149
• Parties: REA BROS. SHEEP CO. v. RUDI ET AL.
• Court: Montana Supreme Court

127 P. 85

46 Mont. 149

REA BROS. SHEEP CO. v. RUDI ET AL.

Supreme Court of Montana

October 3, 1912

Appeal from District Court, Rosebud County; Sydney Fox, Judge.

Action by the Rea Bros. Sheep Company against Nils Rudi and another partners as Rudi Bros. From an order granting an injunction defendants appeal. Reversed and remanded.

Horkan & Beeman, of Forsyth, and George W. Farr, of Miles City, for appellants.

F. V H. Collins, Braz D. Tull, and C. L. Crum, all of Forsyth Hathhorn & Brown, of Billings, and Gunn & Rasch, of Helena, for respondent.

BRANTLY C.J.

This action was brought on October 13, 1911, to recover damages for a trespass by defendants upon lands belonging to plaintiff. Injunctive relief is also sought to restrain defendants from committing further trespasses in which it is alleged they were engaged at the time the action was commenced, and which, it is also alleged, they threatened to continue. The lands described in the complaint and alleged to belong to plaintiff consist principally of the alternate odd sections embraced within the limits of the grant made by Congress to the Northern Pacific Railroad (now Railway) Company in Rosebud county, aggregating about 160,000 acres. The public surveys have been extended over the whole area wherein these lands lie, except an area of about 40,000 acres. The alternate even-numbered sections and the unsurveyed portion, except small areas occupied by defendants and others as homestead settlements, and the sections granted to the state of Montana for the support of schools, are open, unoccupied lands belonging to the United States. Whether the school sections are under lease or are unoccupied does not appear. The plaintiff is the owner, by purchase from the railway company, of a portion of the lands described, and holds the remainder under lease. It is engaged in breeding, raising, buying, and selling sheep, and is the owner of about 75,000 head, which are divided into a number of small flocks under the charge of herders and camptenders. Only small areas of its lands are inclosed. Within these inclosures are kept the work horses and dairy cattle necessary for the use of those employed in caring for plaintiff's sheep. It is alleged in the complaint that plaintiff's lands are well stocked with native grasses and verdure, and are mainly valuable for grazing purposes; that there are upon them numerous watering places, natural and artificial, which the plaintiff maintains in order to enable it to use the lands for pasturing its sheep and other stock; that the lands constitute its entire winter range and that it needs all the grasses, verdure, and natural hay growing thereon, and all the water and watering places in order properly to care for its stock during all seasons of the year; that the defendants are engaged in breeding, raising, buying, and selling sheep; that they own a large number which they hold in smaller flocks in charge of numerous employés; that the defendants and their employés are well acquainted with the boundaries of plaintiff's lands, but, notwithstanding such knowledge, during the months of June, July, August, and September, 1911, the employés, under the direction of defendants, deliberately and intentionally drove upon them several large flocks of sheep and held and pastured them there, thus consuming and destroying the grasses and verdure growing thereon, as well as the water in the watering places, to the great injury and damage of plaintiff; that, though the defendants and their said employés during the months mentioned were repeatedly requested to desist from their trespasses, they have continued them and have informed the plaintiff that they intend to so occupy and use its lands in the future; that the damage thus done and being done to the plaintiff is irreparable, in that it cannot be estimated in money, and that in any event the defendants are insolvent, and are therefore unable to respond in damages.

Upon presentation to him of the complaint, at chambers the district judge made an order requiring the defendants to appear before the court at Forsyth on November 6, 1911, to show cause why they should not be enjoined pending the action from committing the acts complained of. The order put them under restraint until the hearing could be had. After some delay a hearing was had on November 25th. The defendants appeared, and filed their verified answer. In it they admit that they are engaged in breeding, raising, buying, and selling sheep, and that they hold them in charge of their employés, pasturing them upon the unoccupied public lands adjoining those of plaintiff, but deny that they have been guilty of the trespasses alleged in the complaint, or that they have informed the plaintiff that they intend to continue them, or that they are insolvent. They allege affirmatively that the plaintiff, by purchasing and leasing the odd-numbered sections from the railway company, has sought to put itself in a position to control all the intervening sections of the public lands and to exclude all other persons from using them for grazing purposes, thus creating a monopoly in itself of lands to the use of which the defendants and all others are equally entitled, and that this action and other similar ones brought by plaintiff and now pending were instituted in order to effect this purpose. It was stipulated that orders to show cause in five other actions brought by plaintiff against other defendants, the purpose of which is the same as that sought herein, should be disposed of at the same hearing, each of the defendants therein being accorded the privilege of submitting such evidence as was specially applicable to his case. The plaintiff did not introduce any evidence other than the documentary evidence of its title. Counsel offered three affidavits which tended to corroborate some of the allegations of the complaint, but upon objection by defendants these were excluded. The defendants, in addition to their verified answer, offered evidence to controvert the allegations of the complaint touching their knowledge of the boundaries of plaintiff's lands, and tending to show that there are no markings thereon, other than the corner posts and similar designations put in place by the government surveyors. They offered to show, also, that they occupy a homestead claim in an even-numbered section within the limits of the railway grant, that they have been accustomed to pasture their sheep upon the government land adjoining, and that in September,...