State ex rel. Martin v. Finley

Decision Date23 June 1987
Docket NumberNo. 86-414,86-414
Citation227 Mont. 242,738 P.2d 497,44 St.Rep. 1050
PartiesSTATE of Montana, ex rel., Tom and Lillian MARTIN, et al., Plaintiffs/Respondents, v. George FINLEY and Evelyn Finley, husband and wife, Defendants/Appellants.
CourtMontana Supreme Court

Kammerer Law Offices, P.C., Clinton H. Kammerer, Missoula, for defendants/appellants.

Shaun Donovan, Mineral County Atty., Superior, for plaintiffs/respondents.

HARRISON, Justice.

This appeal arises from an order issued by the District Court of the Fourth Judicial District in and for Mineral County. The District Court utilized the public nuisance doctrine to require a livestock owner to prevent his cattle from running upon the public roadways within an open range area. We reverse and remand in part and affirm in part.

The material facts of this case are not in dispute. George and Evelyn Finley are a married couple who own roughly 500 acres of land in Mineral County, Montana. The Finleys purchased their property in 1952, have lived on the land since 1965, and since about 1975 have raised a small number of livestock. The Finleys' land is not fenced and the entire surrounding area is open range. The surrounding countryside is mixed forest and range and is bisected by public dirt and gravel county roads.

The Mineral County Sheriff's Department received over the years a relatively large number of complaints lodged by neighbors against the Finleys' wandering livestock. No action was taken, however, until the fall of 1984, following an increase in the number of reported incidents involving wandering cattle. On November 15, 1984, the State of Montana, on behalf of Tom and Lillian Martin and forty-seven other named plaintiffs, filed this action seeking injunctive relief.

In its complaint, the State, arguing that the Finleys' loose livestock constituted a public nuisance, sought to enjoin the Finleys from allowing their livestock to wander beyond their property. The State argued that the Finleys' livestock constituted a public nuisance because (1) the livestock interfered with the plaintiffs' free use and enjoyment of their property, Sec. 45-8-111(1)(a), MCA, and (2) the livestock ran at large upon public roads causing hazardous road and driving conditions, Sec. 45-8-111(1)(c), MCA.

Following a show cause hearing, the District Court issued an order on December 3, 1984, granting a preliminary injunction. The court, in relevant part, found that the unrestrained wanderings of the Finleys' livestock on public roadways constituted a public nuisance. Also, in a finding relevant to a separate issue on appeal, the court found that the Finleys owned a bull which was not certified as purebred and therefore could not, pursuant to Sec. 81-4-210, MCA, run at large.

The Finleys responded with a motion to dissolve the preliminary injunction. But in separate orders issued in May 1986, the District Court denied the Finleys' motion and ordered that this nuisance be abated. Specifically, the court found that the presence of the Finleys' livestock upon the public roads of Mineral County constituted a public nuisance as defined by Sec. 45-8-111(1)(c), MCA, and ordered the Finleys to prevent their livestock from running upon these roads. Further, the court repeated its earlier finding that the Finleys were allowing an unregistered bull to run free on the open range and ordered the Finleys to confine this bull until they demonstrated it was purebred in accordance with the statutory requirements. From this order the Finleys appeal.

We are asked in this case to determine whether the public nuisance doctrine may be used to require a livestock owner to restrain his stock from the county roadways located in an open range area.

Montana since before its admission to the Union has been an open range state. This status is presently codified at Sec. 81-4-203, MCA, which provides:

In 81-4-204, 81-4-207, and 81-4-208, the term "open range" means all lands in the state of Montana not enclosed by a fence of not less than two wires in good repair. The term "open range" includes all highways outside of private enclosures and used by the public whether or not the same have been formally dedicated to the public.

The types of animals which may not roam free on the open range are specified by statutory exception. Sheep, swine and goats may not run on the open range. Section 81-4-201, MCA. Male equine animals may not run on the open range, equine animal defined as any stallion, ridgeling, unaltered male mule or jackass over the age of one year. Section 81-4-204, MCA. Bulls which are not purebred of a recognized line may not run at large and no bull, purebred or not, may be turned loose on the open range between December 1 and June...

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3 cases
  • Larson-Murphy v. Steiner, 98-441.
    • United States
    • Montana Supreme Court
    • 14 December 2000
    ... ... Hoskin Road is a two-lane, paved county highway that it is neither a state highway nor a part of the federal-aid primary highway system. The ... "law of the open range remains the law of this state." See State ex rel. Martin v ... Finley (1987), 227 Mont. 242, 245, 738 P.2d 497, 499 ... ...
  • Yager v. Deane
    • United States
    • Montana Supreme Court
    • 16 July 1993
    ... ... Deane, Jr., Defendant and Appellant, ... The State of Montana, Defendant and Respondent ... No. 92-283 ... Supreme ... 132, 706 P.2d 491. Additionally, Deane relies on State ex rel. Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 201, as a source ... See State ex rel. Martin v. Finley (1987), 227 Mont. 242, 738 P.2d 497. Under the open range ... ...
  • Williams v. Selstad
    • United States
    • Montana Supreme Court
    • 13 December 1988
    ...is the law of Montana and that the exceptions enacted by the Legislature have been carefully crafted. State ex rel. Martin v. Finley (Mont.1987), 738 P.2d 497, 499, 44 St.Rep. 1050, 1052. We are here confronted with a livestock statute which makes it a misdemeanor to willfully allow livesto......

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