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12/05/78 JACK MAGUIRE v. SHELDON YANKE

December 5, 1978.

JACK MAGUIRE, PLAINTIFF-RESPONDENT,
v.
SHELDON YANKE, DEFENDANT-APPELLANT



Donaldson, Justice. McFadden and Bistline, JJ., concur. Bakes, Justice, Concurring in the reversal, but Dissenting in the Disposition. Shepard, C. J., concurs.

Author: Donaldson

In 1975, Claude Porter leased a tract of property located in Blaine County from McCulloch Properties, Inc. The McCulloch property is situated approximately one and three-quarter miles west of Hailey, Idaho. The property is intersected by the Croy Creek Road which runs in an east-west direction across the property. On June 6, 1975, Porter subleased to the plaintiff-respondent Maguire, some 82 acres located on the south side of Croy Creek Road. The 82 acres were described as hay and alfalfa land, and Maguire used the property for raising hay. The hayland was surrounded by a fence but the fence was in a state of disrepair. Sometime in June 1975, Porter subleased to the defendant-appellant Yanke the property on the north side of Croy Creek Road. This property was pasture land and was also fenced. The lease agreement between Yanke and Porter provided that Yanke would pasture cattle on the land, and Yanke would maintain the fence around the pasture to ensure confinement of his livestock. In June 1975, Yanke moved 130 cows, 130 calves, and 8 bulls into the pasture. The Yanke and Maguire properties were not located in a herd district. Testimony was received that the area had been historically one of enclosed lands.

On numerous occasions between mid-July 1975 and August 2, 1975, several of Yanke's cattle broke through the pasture fence and strayed onto Maguire's alfalfa land south of the road. On August 2, 1975, a major breakout of Yanke's cattle occurred, and approximately 137 head of cows and calves entered Maguire's hayfield. At the time, Maguire had baled hay in the field which was substantially damaged by the cattle. Substantial damage was also done to the growing second crop of hay. When Maguire learned of the breakout, Yanke was called and the cattle were promptly removed.

Maguire thereafter filed this action against Yanke for damages. Maguire sought $3,818 actual damages and $10,000 punitive damages. The district court awarded Maguire a judgment of $3,818 to compensate him for his actual damages. The district court refused to allow any punitive damages, finding that Yanke had not acted wilfully. In finding that Yanke was liable for the damages done by the cattle to Maguire's hay and land, the district court stated in its Conclusions of law:

I

It was the lawful duty of Yanke to maintain his fences so that his cattle would not escape through the same. This duty arose through the agreement with Porter as well as the fact that it was illegal for Yanke's cattle to trespass upon the county road.

II

In addition to Conclusion No. 1, it was the duty of Yanke to keep his cattle fenced in because this was not an open range area, and was an area of enclosed lands. See, I.C. 25-2118 and Soran v. Schoessler, ([87] Idaho [425]) 394 P.2d 160.

I

The trial court reasoned that Maguire had no duty to fence Yanke's cattle off his property, since it bordered on a county road which cattle could not legally trespass upon; and in addition that it was Yanke's duty to keep his cattle fenced in because the land was situated in what was historically an area of enclosed lands and not in open range.

Yanke contends the trial court erred in allowing Maguire recovery for damage to his crops caused by Yanke's cattle when Maguire's land is not located in a herd district or enclosed by a legal fence. Yanke argues that, with the exception of herd districts and liability to motorists for livestock that stray on highways, it is a longstanding rule in Idaho that livestock are permitted to roam and graze upon unenclosed lands without any liability accruing to the owner of the livestock for damage caused by them.

A review of the law relating to the liability of an owner of livestock for damage caused by his stock straying on another's land is necessary to the resolution of the issues presented in this case. At common law it was the duty of the owner of livestock to fence them in, and no duty was placed upon the adjoining landowner to fence them out. 4 Am.Jur.2d Animals § 49 (1962); Restatement (Second) of Torts § 504(1) (1976). The owners of livestock were liable for the damage caused by their stock straying upon another's land whether the land was enclosed or not. An early English case stated the rule as follows: "[Where] my beasts of their own wrong without my will and knowledge break another's close I shall be punished, for I am the trespasser with my beasts . . . for I am held by the law to keep my beasts without their doing wrong to anyone." W. Prosser, Handbook of Law of Torts 496 (4th ed. 1971), quoting 12 Hen. VII, Keilwey 3b, 72 Eng.Rep. 156.

Western cattle states generally rejected the common law, holding that livestock roaming at large committed no trespass when they strayed on unenclosed private land.[Footnote 1] See Scott, The Range Cattle Industry: Its Effect on Western Land Law, 28 Mont.L.Rev. 155 (1967). Idaho, Concurring with the approach of its neighboring states, also rejected the common law rule. Kelly v. Easton, 35 Idaho 340, 207 P. 129 (1922); Johnson v. Oregon Short Line Ry. Co., 7 Idaho 355, 63 P. 112 (1900). The Idaho rule was stated as follows: "The common-law rule that every man must confine his own cattle to his own land does not obtain in this state, and in Strong v. Brown, 26 Idaho 1, 140 P. 773, 52 L.R.A.,N.S., 140, Ann.Cas. 1916E, 482, it is held that under our statute (C.S., c. 82), if a landowner fails to fence out cattle lawfully at large, he may not recover for loss caused by such livestock straying upon his unenclosed land." Kelly v. Easton, 35 Idaho at 344, 207 P. at 130 [citations omitted]. However, one who willfully and deliberately drives his stock upon the lands of another, whether enclosed or unenclosed and grazes them upon such land without the permission of the owner, is liable in damages for the trespass. Lazarus v. Phelps, 152 U.S. 81, 14 S.Ct. 477, 38 L.Ed. 363 (1894); Swanson v. Groat, 12 Idaho 148, 85 P. 384 (1906).

In an effort to provide a remedy for landowners whose property was damaged by roaming cattle, most western states including Idaho passed fence laws. Idaho Code §§ 35-101 and 35-102 define what constitutes a legal fence, prescribing standards relating to height, length, number of rails and materials. Idaho Code § 25-2202 provides that a landowner who encloses his property with a legal fence has a cause of action against the owner of animals that break the enclosure.[Footnote 2] The United States

Supreme Court, commenting on a Texas fence law, in Lazarus v. Phelps, 152 U.S. at 85, 14 S.Ct. at 478, states the object of such fence statutes:

As there are, or were, in the state of Texas, as well as in the newer states of the west generally, vast areas of land, over which, so long as the government owned them, cattle had been permitted to roam at will for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors, to change the custom of the country in that particular, and oblige cattle owners to incur the heavy expense of fencing their land, or be held as trespassers by reason of their cattle accidentally straying upon the land of others.

The legal fence laws of the State of Idaho provide a remedy to the landowner whose property, although enclosed by a legal fence, is nonetheless damaged by roaming cattle. Contrary to the finding of the trial court in the instant case, the legal fence laws of the State of Idaho are "fencing out" statutes. These legal fence statutes recognized the rancher's right to allow cattle to roam.

Although the "fence out" rule prevails in this state, there are some important legislative exceptions to the rule. Idaho and other western states provide for the creation of herd districts as an alternative to landowners who wish to protect their land from damage caused by roaming stock, but do not wish or cannot afford to fence their land. Idaho Code § 25-2401 et seq. permits districts within a county to petition for the creation of a herd district. If a majority of the landowners owning more than fifty percent of the land in the district vote to create a herd district, livestock are prohibited from running at large within the district, and a landowner may recover for damages caused by animals straying upon his property, regardless of whether it is enclosed by a legal fence.[Footnote 3] In essence the creation of a herd district in Idaho reinstates the English common law within that district, placing a duty on the livestock owner to fence in his stock and holding him liable for damages caused if his stock escapes onto another's land, regardless of whether that land is fenced or not.

In 1963, the Idaho Legislature amended the herd district law, I.C. § 25-2402, to not allow inclusion of open range in a herd district.[Footnote 4] Open range was defined as follows: "all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam." The legislature also added to the section a provision that excepts from the application of herd district laws any livestock roaming or straying into the district from open range, unless the district is enclosed by a legal fence.

In 1961, the Idaho Legislature passed a statute, I.C. § 25-2118,[Footnote 5] relieving

owners of livestock roaming on open range of the duty to keep such stock off the highway and absolving them of liability for damages caused by a collision between a vehicle and the livestock. Open range was defined as "all uninclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease or permit, are grazed or permitted to roam." Idaho Code § 25-2118 impliedly makes it the duty of the person owning, or controlling the possession of livestock, to keep them off any highway not located in open range; and does not absolve such a person of liability for damages caused by a collision between a vehicle and the animal, unless the highway is in open range. Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966); Corthell v. Pearson, 88 Idaho 295, 399 P.2d 266 (1965).

II

The prior review of Idaho law reveals that there are two geographical areas other than cities and villages recognized in this state in relation to the liability of livestock owners for damage done by their stock to another's land. First, herd districts created pursuant to I.C. § 25-2401 et seq. where within the district the English common law rule of prohibiting livestock from running at large is reinstated. Since 1963 herd districts could not contain "open range," which was defined as "all uninclosed land outside cities and villages which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam." 1963 Idaho Sess.Laws, ch. 264, p. 674. The second area contains "open range" as defined by I.C. § 25-2402 and all other areas of the state not within cities, villages, or already created herd districts. Herd districts may be created in this area by the landowners for protection against roaming livestock so long as the land in question is other than "open range" as defined by I.C. § 25-2402. It is in this area where the rule that livestock owners are not required to fence their stock in and are not liable for damages caused by their stock to another's land unless the landowner's property is enclosed by a legal fence obtains.

The trial court held that it was the duty of Yanke to keep his cattle fenced in because the area was an area of enclosed lands and not located in open range. Testimony was received at trial that the area in question had been one of enclosed land where cattle were not permitted to roam for more years than any witness could remember to the contrary. It appears that the trial court relied on this testimony and the definitions of "open range" contained in I.C. § 25-2402 in determining the area was not in open range and thus placing a duty on Yanke to fence his livestock in. Maguire concurs with the trial court that the right of livestock to roam freely is restricted to "open range" and that the controlling definition of "open range" is contained in I.C. § 25-2402 and § 25-2118, which includes only land where historically livestock were grazed or permitted to roam.

This analysis, in essence, creates a third area relating to liability for damage caused by roaming livestock. This area would encompass all land which livestock by custom, license, lease, or permit are not permitted to roam at large or graze. In this region, a livestock owner would have a duty to fence his cattle in, and there would be no duty on a landowner to fence cattle out in order to recover damages caused by roaming livestock.

Yanke contends that the trial court erred in using the analysis above in determining he had a duty to fence his cattle in. Yanke argues that this Court's rejection of the English common law duty to keep one's livestock enclosed in Johnson v. Oregon Short Line Ry. Co., supra, and the adoption of the rule of no duty to fence in livestock in later cases, plus the enactment

of fence laws by the Idaho Legislature, firmly establish that within this state there is no duty for a livestock owner to fence his cattle in. Yanke asserts that notwithstanding the fact that the area in question was not one where by custom livestock were grazed or permitted to roam, no liability attaches to a livestock owner for damage done by his stock straying onto another's land, unless the damaged landowner's property is enclosed with a legal fence. Yanke argues that the only method by which a landowner may relieve himself of his duty to fence livestock out and place upon the livestock owner the duty to fence his stock in is the creation of a herd district. We agree.

The abrogation of the English common law duty of a livestock owner to fence his stock in and the passage of fence laws which placed the duty on the landowner to fence livestock out is a phenomenon of the western cattle states.[Footnote 6] Since the western states adopted such rules in response to a common problem during the early settlement of this region in the late 1800's and early 1900's, as did Idaho, a review of these states' approach to the question of a livestock owner's liability for damage caused by their trespassing stock would be helpful in determining the meaning of our own legislation. "Countless avenues and forms of communication and interaction among the jurisdictions lead to so much parallelism among the laws of different states as the result of emulation, adaptation and outright copying that common patterns and standard modes of dealing with common problems become evident." Sutherland Statutory Construction § 52.03 (4th ed. Sands rev. 1973).

We have extensively reviewed the statutory and case law of Washington, Oregon, Montana, Wyoming, Nevada, Colorado, Arizona and New Mexico and we find no support for the appellant Maguire's position that a livestock owner has a duty to fence his stock in areas where livestock have not historically been grazed or permitted to roam. On the contrary, these states have adopted the general rule that livestock owners may range their stock in all areas of the state with no obligation to prevent them entering upon the unenclosed premises of another. These states require that a landowner cannot recover for damage to his lands caused by trespassing livestock unless their land was enclosed by a legal fence.[Footnote 7]

In Washington, Oregon, Montana, Wyoming, New Mexico and Arizona the respective state legislatures adopted legislation, the equivalent of our herd district law, which permit certain counties or parts of the states by a vote of the people within such subdivision to determine whether livestock should continue to be allowed to run at large and landowners be compelled to rely on a legal fence for protection, or whether livestock owners should be required to fence their stock in and landowners allowed to recover for damage caused by trespassing stock, regardless of whether their land is enclosed by a legal fence.[Footnote 8] The case law and legislation from these jurisdictions clearly shows that in all other areas in the state not designated as herd districts livestock are permitted to run at large and it is the duty of the landowner to fence the stock out.

The trial court erred in restricting the right of livestock owners to roam stock to only those areas where by custom, license, or permit livestock are grazed or permitted to roam. The adoption of such a rule creates de facto herd districts in areas where by custom livestock have not been permitted to roam and thereby renders I.C. § 25-2401 et seq. unnecessary. The trial court, in effect, applied herd district rules relating to liability for roaming livestock to these areas without requiring the creation of a herd district. It is a general rule of statutory construction that courts should not nullify a statute or deprive a law of potency or force unless such course is absolutely necessary. State v. Gibbs, 94 Idaho 908, 500 P.2d 209 (1972); Sampson v. Layton, 86 Idaho 453, 387 P.2d 883 (1963). It appears the intent of the legislature in enacting I.C. § 25-2401 et seq. was that for areas where the historical use has been one of enclosed lands, the landowners in that area must petition and vote to designate that area a herd district in order to change the Idaho law regarding liability for damage by roaming livestock.

The statutory definitions of "open range" as set forth in I.C. §§ 25-2402 and 25-2118 are inconsistent with the case law concept of "open range" as unfenced, unenclosed, public range, domain or common. Kelly v. Easton, 35 Idaho 340, 207 P. 129 (1922); Strong v. Brown, 26 Idaho 1, 140 P. 773 (1914); City of Bellevue v. Daly, 14 Idaho 545, 94 P. 1036 (1908); Swanson v. Groat, 12 Idaho 148, 85 P. 384 (1906). It is a matter of common understanding that definitional provisions do not purport to prescribe what meanings shall attach to the defined terms for all purposes and in all contexts but generally only establish what they mean where they appear in that same act. Sutherland Statutory Construction § 47.07 (4th ed. Sands rev. 1973).

Prior to 1963, I.C. § 25-2402 contained no definition of "open range." Herd districts were allowed to be created in any part of this state. This permitted persons within a geographical area to reinstate in that area the English common law duty of a livestock owner to confine his stock that was abolished in Idaho by the holding in Johnson v. Short Line Ry., supra, and to avoid the necessity of constructing a legal fence as required by I.C. § 25-2202 in order to recover damages caused by trespassing stock. In 1963, as was previously discussed, the legislature inserted a definition of "open range" in I.C. § 25-2402 and stated that herd districts could not be created in such area. It is respondent Maguire's contention that this definition of "open range" should be applied to our entire body of case law and thus limit the rights of livestock owners to roam their stock at large to "open range" as defined by the statute. This interpretation is inconsistent with not only our case and statutory law, rules of statutory construction, but also the common pattern of dealing with this problem in the West as evinced by the laws of eight of our sister states. Prior to 1963, herd districts could be created in any part of Idaho. It is clear the amendment of I.C. § 25-2402 by the inserting of a definition of "open range" was designed to protect the rights of livestock owners by prohibiting herd districts in areas where they historically grazed stock, rather than limiting the area where livestock owners were free to let their stock roam at large. Under our decision, herd districts may still be created in any area not within "open range" as defined in I.C. § 25-2402. The passage of I.C. §§ 25-2402 and 25-2118, with their accompanying definition of "open range" in terms of historical use, was not intended to and does not change the law of this state that with the exception of cities, villages, and herd districts, livestock may run at large and graze upon unenclosed lands in this state.

III

The trial court also appeared to base its finding that Yanke had a duty to fence his cattle in on the fact that the pasture where the cattle were grazed was bounded on one side by a highway. Yanke did have a duty to keep ...


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