Montana Attorney General Opinion 15-330

Opinion No. 330 Fences-Legal Fences-Livestoek- Trespass-Herd Districts . HELD: The law in relation to dh;- sion or partition fences is exactly the same either within or without herd districts. So far as the question of trespassing stock within a herd district is con- cerned, it is not necessary for the own- er of the land or crop to fence same before he may have his ch'il remedy for such trespass. OPINIONS OF THE ATTOR~EY GENERAL September S. 1933. You ask whether or not it is neces- sary for co-terminus land owners to maintain line or dh'ision fences within herd districts. The law in connection with dh-ision fences is contained in Re\'ised Codes of :'.lontana 6677 to 6782. I <10 not under- stand that this law was repealed, either expressly or impliedly, by the law in relation to herd districts Re\··ised Codes 3384 to 3389. and amendments. There- fore the law in relation to division or Jl~rtition fences is exactly the same eIther within or without herd districts. Your second question appears to in- volve the matter as to whether or not. it is necessa ry tha t lands upon which Ih'estock are held should be fenced or whether SOllle fluty exists upon the owners of other lands to keep same fenced in order to pre\'ent the trespass of stock where the stock is within a herd district. According to the law within herd districts. section 3385. Revised Codes, amended hy Chapter 45, Laws of 1925, the duty is upon the owner of stock within such district to see that his stock does not tre~pas.<; upon the lands of llllother. So far as the question of tres- passing stock within a herd district is concerned, it is not necessary for the owner of lands or a crop to fe~ce same. I.f his lands or crops are injured by the h\'estock of another he is "iven a rem- efly which does not depe~d upon the question of whether or not he has a partition fence or a legal fence. It may be that I don't exactly under- stand yonr questions but as I under- stand it the two questions are separate and distinct and each must be examined from the standpoint of the question to be determined. The law as to whether one is required to build a division fence is not necessarily determinative of his right to collect damages for trespass- ing stock. This, howe\'er, is largely a question of civil rights and these rights. arriving in different manners, may not he included within the discussion' cm'- cred by this opinion. 'Opinion No. 331 Warehousemen--Bonds--Sureties -Liability, Amount of. HEI,D: 'l'he liability to all persons of the surety on bonds gh'en under the ~tate 'Warehousemen's Act is limited to the penalty nallled in the particular bond. August 28, 1933. You request an opinion on the fol- lowing question submitted to you by the Massachusetts Bonding and Insur- ance Company, such company ha.ing furnished a number of bonds under the 'Varehousemen's Act: "Have you eyer obtained an expres- sion from the Attorney General of the Rtllte of Montana if the surety on the license honds for public warehouse- man, grain dealers, or track buvers is liable ullder your luws, and' the form of bond that you require. to all persons who have suffered loss by reason of the default up to the penalt~· of the bond or is the total liability of the surety to all persons limited to the penalty of the bond? Assuming tha t the penalty of the bond is $5000, is the maximum liability of the surety to all persons in the sum of $5000, in the aggregate, or is the surety liahle to each and every person up to the sum of $5000?" Chapter 40, Part III of the ChoU Code of 1921, compriSing sections 464 to 50n inclusive, is entitled "Official Bonds" and relates specifically to bonds of state officers, hut section 503 of the chapter is us follows: "The provisions of this chapter as the same shall be in force after amendment by this act. shall apply to all official bonds, and to the bOl1(1s and undertakings of re; ceivers, executors, administmtors and guardians, and to bonds and und~rtak­ ings given in injunction proceedings, a nd to all honds and undertakings re- quired by law to be given and approved by any court, judge, board, person, or body; and, except as to requirements of such approyal, the proviSions shall apply to all bonds given or required by law to be given in attachment proceed- ings, criminal actions or proceedings, bail bonds, appeal bond, and all bonds giVen or required to be given in any legal proceedings or action in any court . of this state." The phrase in this sec- tio!!, "all bonds and undertakings re- qUIred by law to be given and approved by a~,y court, judge, board, person, or body, etc., we belieye to be broad enough to bring your warehouse bond~ within its provisions.