Smith v. Williams

• Decision Date: 31 August 1874
• Parties: SMITH, respondent, v. WILLIAMS, appellant.
• Court: Montana Supreme Court

2 Mont. 195

SMITH, respondent,

v.WILLIAMS, appellant.

Supreme Court of the Territory of Montana.

August Term, 1874.

Appeal from First District, Jefferson County.

THE cause was tried before SERVIS, J.

S. ORR and SHOBER & LOWRY, for appellant.

The court erred in saying, in effect, to the jury that it was unnecessary for respondents' premises to be inclosed to enable respondents to recover. This instruction disregarded the law of the Territory. Cod. Sts. 373, § 1. This requires the premises to be “inclosed by a lawful fence,” which means entirely surrounded by the fence, or a similar obstruction. Webster's definition of “inclosed.” The statute defines a lawful fence. Cod. Sts. 476, ch. 25.

Stock owners are not liable for any injury to the crops of a party, if the premises are not entirely surrounded by a lawful fence, as defined by the statute. Cattle in this Territory are free commoners, and can roam and graze at large upon the public range. Stock owners are not required to guard their stock from ranging upon any premises, except those which are lawfully inclosed. Any other construction is contrary to the plain provisions of the statutes and the intention of the legislature.

No case can be found to conflict with these views, and the following authorities support them. Waters v. Moss, 12 Cal. 536;Comerford v. Dupuy, 17 Id. 308;Seeley v. Peters, 5 Gilm. 130; Headen v. Rust, 39 Ill. 186;Darling v. Rodgers, 7 Kan. 592; Larkin v. Taylor, 5 Id. 434; Union P. R. Co. v. Hand, 7 Id. 380; Rose v. Bunn, 21 N. Y. 275;Bradley v. Buffalo, 34 Id. 427.

Respondents must be free from fault. They cannot support this action partly on their wrong and partly on wrong of appellant. Munger v. Tonawanda R. R. Co., 4 N. Y. 349. The evidence shows that there was no obstruction to prevent cattle from roaming on respondents' premises a great portion of the distance around it.

A. G. P. GEORGE and G. F. COWAN, for respondents.

Cattle within the Territory are not free commoners. The common law has not been changed by the legislature. The right cannot be founded upon custom, as sufficient time has not elapsed to establish a custom.

A party seeking to justify a trespass of his cattle upon the close of another, by reason of a defective fence, which the owner was bound to keep in repair, must show that the cattle entered through or over the defective fence. Deyo v. Stewart, 4 Denio, 101;Melody v. Reab, 4 Mass. 471;Colden v. Eldred, 15 Johns 220.

The cattle were not free commoners, and were not rightfully upon the common adjoining respondents' close. Respondents were not obliged to fence against them. Wells v. Howell, 19 Johns. 385;Stafford v. Ingersol, 3 Hill, 38.

There is no evidence before this court to show what part of respondents' premises was inclosed.

WADE, C. J.

This was an action in the nature of trespass, brought by plaintiffs against defendant, to recover damages, for that defendant's cattle broke and entered the farm or inclosure of plaintiff, and destroyed his crop of growing grain.

The statute under which the action was brought is as follows:

Section 1. “If any horse, mule, jack, jennie, hog, sheep or any kind of neat cattle, shall break into any ground inclosed by a lawful fence, the owner or manager of such animal shall be liable to the owner of such inclosed premises for all damages sustained by such trespass.”

A lawful fence, as defined by the statute, is one four and one-half feet in heighth, whether constructed of poles, rails or boards. Cod. Sts. 373, 476.

Upon the trial, the court gave to the jury the following instructions, the giving of which, among others, is assigned as error:

“If you shall find from the proof that either the slough spoken of by the witnesses is used for a fence or inclosure, or any other part of the inclosure is insufficient under the law as I have given you, and shall further find that defendant's cattle did not enter the premises through such insufficient or defective inclosure, but that they did enter the same where the inclosure of the premises was good and lawful as I have defined, then you will find for the plaintiffs, and assess their damages, as you find from the proof they are entitled, not exceeding the amount claimed in the complaint. That if the slough or swamp was not of such a character as to prevent cattle crossing it like that of a lawful fence, yet if the cattle in question did not enter the close of plaintiffs over or through the same, the fact that it was not sufficient to turn cattle and stock will be no defense to the plaintiffs' right to recover, provided you shall find that the cattle entered the premises where the fence was good and lawful that inclosed the same, no matter by whom such fence was owned that inclosed the same. And if the fence of Hall, or any other person adjoining plaintiffs, as a part of plaintiffs' inclosure, was ever so defective, such defect will be no defense to this action, provided you shall find the defendant's cattle entered plaintiffs' premises where the fence was lawful, as already defined.”

This instruction had the effect to add to the statute already quoted, the following words: “ But if such ground is not inclosed by a lawful fence, nevertheless the plaintiffs can recover, provided said animals enter the premises at a point where the fence is lawful.”

The instruction was evidently given upon the hypothesis that the statute in question could be so construed as to declare that if the animal enters the grounds at a point where the fence is lawful, it shall be presumed therefrom that there was an inclosure, and that the fence surrounding it was of the heighth and kind required for the entire distance, and that the fence at such point shall conclusively determine the character of the fence around the entire inclosure; and more than this, it shall conclusively determine that the ground was entirely inclosed; and a defense showing that there was no inclosure, or that the fence was unlawful and insufficient, would thereby be excluded.

Can the foregoing words be added to the enactment by judicial legislation or construction, by virtue of the rules that control the interpretation of statutes?

Statutes should be their own interpreter. Courts must look at the language used, and the whole of it, and derive therefrom the intention of the legislature. Where this intention is obvious there is no room for construction. When the language is plain, simple, direct and without ambiguity, the act construes itself, and courts must presume the legislature intended what it plainly says. It is only in the case of ambiguous, doubtful and uncertain enactments that the rules and principles of interpretation can be brought into requisition. It is not allowable to interpret what has no need of interpretation.

This seems to be the settled doctrine of the law, both in England and the United States, as a reference to a few decisions will demonstrate.

In the case of King v. Inhab. Stoke Damarel, 7 Barn. & Cress. 563, the court, per BAGLEY, J., says: “I do not know how to get rid of the words of this section of the act of parliament; and where the legislature, in a very modern act of parliament, have used words of a plain and definite import, it is very dangerous to put upon them a construction, the effect of which will be to hold that the legislature did not mean that which they have expressed.”

Says COLERIDGE, J., in King v. Poor Law Comrs., 6 Ad. & E. 7: “The court should decline to mold the language of an act for the sake of an alleged convenience, or an alleged equity, upon doubtful evidence of intention.”

PATTESON, J., in King v. Burrell, 12 Ad. & E. 468, says: “Every day I see the necessity of not importing into statutes words which are not to be found there. Such a mode of interpretation only gives occasion to endless difficulties.”

In Lamond v. Eiffe, 3 Q. B. 910, the court, per Lord DENMAN, say: “We are required to add some arbitrary words to the section, which would exclude us from acting in certain cases. We cannot introduce any such qualifications, and I cannot help thinking that the introduction of qualifying words in the...