Williams v. Selstad

• Decision Date: 13 December 1988
• Docket Number: No. 88-190,88-190
• Citation: 235 Mont. 137,766 P.2d 247
• Parties: Victoria S. WILLIAMS and Larry D. Williams, Plaintiffs and Appellants, v. Spencer SELSTAD and Dawn Selstad, Defendants and Respondents.
• Court: Montana Supreme Court

Page 247

766 P.2d 247

235 Mont. 137

Victoria S. WILLIAMS and Larry D. Williams, Plaintiffs and Appellants, v. Spencer SELSTAD and Dawn Selstad, Defendants and Respondents.

No. 88-190.

Supreme Court of Montana.

Submitted Oct. 11, 1988.

Decided Dec. 13, 1988.

Skaggs Law Firm; Robert H. Skaggs argued, Billings, for plaintiffs and appellants.

Peterson, Schofield & Leckie; K.D. Peterson argued, Billings, for defendants and respondents.

HARRISON, Justice.

This appeal arises from a grant of summary judgment in the District Court of the Thirteenth Judicial District, Yellowstone County, Montana. A motorist was injured when a horse ran onto the county highway located within a herd district. The lower court held these livestock owners owed no duty to the appellants as a matter of law. We affirm.

Appellants allege Victoria Williams was driving on 12-Mile Road near Shepherd, Montana, when a horse owned by the respondents ran onto the highway. In her attempt to avoid the horse, Victoria lost control of her vehicle and was injured. The parties have stipulated that the accident occurred on a secondary county road which is located within a "herd district," but which is not part of the Federal-Aid Primary Highway System.

Appellants argue the respondents negligently failed to maintain fences on their property adjoining 12-Mile Road, and negligently failed to restrain and confine the horse, "thereby permitting said horse to run at large." Appellants also allege that "Defendants knew, or should have known, that their negligence as heretofore described would in fact result in said horse running at large ..." Appellants also rely on the doctrine of res ipsa loquitur.

Respondents moved to dismiss the action. After considering the stipulations, the motion to dismiss was treated by the District Court as a motion for summary judgment. By order and memorandum dated January 20, 1988, the District Court granted respondents' motion. The court held that herd district statutes were designed only to protect other land owners and thus were not exceptions to the open range doctrine.

Although the open range doctrine relieves owners or possessors of livestock of a duty to keep their livestock from wandering onto the roadway, appellants argue that the herd district is a legislative exception to this rule. In support of this theory, appellants note the Legislature has otherwise modified the open range doctrine by preventing livestock from running at large in certain areas through enactment of §§ 60-7-101 through 60-7-205, MCA (state highways which have been designated as part of the National System of Interstate or Defense Highways or as part of the Federal-Aid Primary System). Similarly, they argue, because §§ 81-4-301 through 81-4-309, MCA, provide for the creation of herd districts and penalties for those who "shall willfully permit" livestock to "run at large within any herd district," the no-duty rule no longer applies. We disagree with this conclusion.

Recently we have restated that the law of the open range 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 livestock to roam at large within a herd district. The question we must answer is whether this statute was intended by the Legislature to impose a duty on livestock owners to keep livestock from wandering onto the roadway within the herd district.

Section 81-4-306, MCA, provides:

(1) Any person who is the owner or entitled to the possession of any horses, mules, cattle, sheep, asses, hogs, or goats, who shall willfully permit same to run at large within any herd district, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $50 or more than $250 for each offense. Each day that each five head or less of such horses, mules, cattle, sheep, asses, hogs, or goats are willfully permitted to run at large shall constitute a separate offense.

(2) Any person who is the owner or entitled to the possession of any bull, stallion, or jackass over 1 year of age who shall willfully permit same to run at large within any herd district shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $50 or more than $250 for each offense. Each day that such bull be permitted to run at large shall constitute a separate offense.

In order to determine whether the Legislature intended to create a duty to motorists, we look to the plain language of the statute and to the practical implications of imposing such a duty. Initially, we point to the definition of open range as defined in § 81-4-203, MCA, wherein the Legislature specifically included highways:

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.

Nothing in this definition, or in the herd district statutes removes the no-duty rule of the open range from applying to highways, whether they pass through a herd district or not.

In this case, we agree with the District Court that the herd district statutes were not designed to protect motorists but were only intended to protect landowners and owners of livestock. Recently, in State ex rel. Martin, supra, we examined the open range doctrine and the statutory exceptions which we noted were carefully crafted by the Legislature. Such exceptions include those enumerated under § 60-7-101 et seq., MCA, where the Legislature's goal was to strike a balance between the needs of Montanans who raise livestock and the need to make Montana's highways safer for motorists. Similarly, the Legislature has specifically stated that certain kinds of livestock shall not wander at large on open range. Sections 81-4-204, -207, -208 and -210, MCA.

It is simply not clear that Montana's Legislature...