Montana Attorney General Opinion 16-156

Opinion No. 156. Livestock-Grazing Commission- Fences. HELD: Various questions relating to grazing of livestock and fencing of lands are answered. Augusr 20, 1935. Montana Grazing Commi5'sion Helena, Montana In response to your request for "3.n opinion upon several questions involv- ing the operation of the Montana Grazing Act, I will reply to each ir. succession. 1. "In the event that the Grazing As- sociation desiring to inclose the out- side boundary of the grazing area with a fence should meet at the point where a private individual has a fence along said outer boundary, may the Grazing Association con- nect with the fence of the private individual running along said outer boundary and use the said fence as a portion of the outer boundary without paying to the individual owner any compensation for the use of his fence as a part of the outer boundary of the area?" Section 6777, R. C. M 1921, pro- vides: "Coterminous owners are mutually bound equally to maintain, 1. The boundaries and monuments between them; 2. the fences between them, unless one of them chooses to let his land lie without fencing, in which case, if he afterwards in- closes it, he must refund to the other a just proportion of the value, at that time of any division fence made by the latter; provided, how- ever, that using land for grazing or pasturage of any kind whatsoever shall be deemed usage of said land, and such land shall not be consid- ered as lying idle under the provi- sions of this Section." Further Section 6778, R. C. M. 1921, provides: "The occupants of adjoining lands inclosed with fences must build and maintain partition fcnces between their own and the next adjoining inclosure in equal shares, so long as both continue to inclose the same; and such partition fence must be kept in good repair throughout the year, unless the oc- cupants otherwise mutually agree." Section 10 of Chapter 194 of the Session Laws of 1935, in defining the powers and duties of the State Grazing Commission, provides in part as follows: "In addition to the pow- ers of the Commission hereinbefore enumerated, the Commission shall have power and authority to settle, adjust and approve mutual agree- ments between grazing associations and owners or users within or ad- joining grazing districts, to deter- mine and agree upon an acceptable division fence or barrier, which may be separately or jointly constructed and maintained, such fence as may be agreed upon to be as binding as any other fence prescribed by law." None of the statutory enactments, supra, make references to "connect- ing line" fences but refer specifically to "division fences." The first two sections specifically mention the term "between" and likewise the lat- ter citation refers to the term "di- vision" fence. Examination of the decisions of the Supreme Court of Montana discloses 156 OPINIONS OF THE ATTORNEY GENERAL no reference to any case than those in which "division" fences are in- volved. Hoar v. Hennessey, 29 Mont. 253; Dorman v. Erie, 63 Mont. 579; Chilcott v. Rea, 52 Mont. 134; Brigge- man v. Corrigan, 60 Mont. 205. In the absence of statutory law on the subject the application of the rule defining the rights respecting connecting fences in other juris- dictions is stated in 25 C. J., page 1031, as follows: "The statutes pro- viding for and relating to partition fences contemplate fences on the boundary line between the lands of adjoining owners." and cites among the authorities the cases: Western Granite and Marble Company v. Knickerbocker, 103 Cal. 111; Ingwer- son v. Barry, 118 Cal. 342. In my opinion the Commission can- not force an agreement to connect with the fence of another unless the same is strictly a "division" fence. However, the commission has the power to enter into agreements with the land owners respecting fences, and on their refusal to cooperate, the grazing district could build partition or division fences around the remain- ing three sides of the disputed tracts and compel the owners to pay for their proportional amount of the fence. II. "In the event that the Grazing As- sociation uses the fence of the in- dividual as part of the outer bound- ary of the area whether legally or by agreement are they obligated to maintain said fences?" Your attention is directed to Sec- tion 6778, supra, and Section 6779, R. C. M. 1921, which reads as fol- lows: "If any occupant of land ad- joining the inclosure of another in- close the same, upon the inclosure of such other person, he must, with- in three months thereafter, build his proportion of such partition fence, or refund to the owner thereof an equal proportion of the value, at that time, of any partition fence of such adjoin- ing occupant." In the event a mutual agreement has been reached or the alternative measure of building of partition fences, Section 6779, is followed, then the association and individual would each be liable equally for the cost and maintenance of the fence. m. "In the event the Grazing Asso- ciation builds the whole of the fence surrounding the outer area of the district and a portion of the fence is used by an individual owner who is not a part of the Association, is the Association or the individual ob- ligated to maintain that portion of the fence?" For the reasons above mentioned and for the further beneficial use derived by the non-member in pro- tecting his range from trespassing stock, such non-member would be obligated to pay for one-half of the maintenance of the fence, subject to the provisions of Section 6780, R. C. M. 1921, which provides: "W"hellever any land belonging to different per- sons in severalty have been inclosed and occupant in common, or without a partition fence between them, and one of such occupants desires to oc- cupy his part in severalty, the other occupant must, within six months after being notified in writing, build and maintain his proportion of such partition fence as may be necessary for that purpose, and in case of neg- lect or refusal so to do, the person giving such notice, may build such fence at the expense of the person so neglecting or refusing, the amount expended to be recovered in an ac- tion, to the extent of damages he may sustain on account of such neg- lect or refusal." IV. "Where a public highway or a pri- vate road crosses the grazing area may the Grazing Association con- struct at the point of ing-Iess 0'- egress of the highway or road may they erect their fence to the high- way or road and across the high- way or road construct an auto-pass or stock guard?" This inquiry requires distinguishing between the various forms of high- ways and roads. Our Supreme Court in the case of State ex rel. McMaster v. District Court, 80 Mont. 228, in detail defines the various forms of highways and roads. The recent trend of governmental aid to highways has OPINIONS OF THE ATTORNEY GENERAL 157 created an additional form, the forest reserve road. Therefore, the proper classification in replying to your in- terrogatory would be: 1. Federal aid- ed-main state highways; 2. state highways; 3. common or public high- ways; 4. forest reserve roads; 5. pri- vate roads. In the cases of federal aided-main state highways authorized in part by Section 1791, R. C. M. 1921, permits for the construction of auto-passes, stock guards and under-passes or over-pases would have to be secured from the State highway commission with the probable consent of the Fed- eral Bureau of Public Roads. In the case of State highways or highways designated under the pro- visions of Section 1788, R. C. M. 1921, which have not been aided by the Fed- eral government consent would have to be procured from the State High- way Commission. If the highway is classified as "common or public" the procedure would be to procure a per- mit from the Board of County Com- missioners as set forth in Chapter 153, Session laws of 1933. In the case of private roads, it would likely be necessary to have the County Com- missioners dedicate the same as a public highway, as our constitution and statutes apparently both omit the right of eminent domain in the matter of crossings or the placing of cattle guards over a private road, unless amicable terms be effected with the owners of the private road. In the case of forest reserve roads, the permission must be obtained from the Forest Reserve officials. V. "In the event that a highway or road crosses the grazing area and the road or highway is fenced on both sides, may the Association con- struct an under-pass or an over-pass over the highway and if so, what provision or method must be pursued by the Association before the con- struction of the under-pass or over- pass?" This inquiry has been covered in interrogatory four. VI. "Do the Laws of the State of Montana provide for roads or high- ways upon section lines whether the road is constructed or not?" Section 1649, R. C. M. 1921, pro- vides: "Highways must be laid out and operated when practicable upon the division or section lines; provid- ing, however, that this section shall not be construed to prevent roads being laid out on diagonal lines when public purposes shall be best sub- served thereby." The statutes of Montana, however, do not provide for roads or highways upon section lines unless action is taken by the Board of County Com- missioners dedicating said highway. In the matter of driving livestock :your attention is specially called to the rule promulgated in the case of Herrin v. Sieben, 46 Mont. 226 at page 234: "When one person grants to another land to which there is no access except by passing other land of the grantor, a way of necessity passes by the grant. In the first in- stance the grantor has the right to designate the tracts or way, having due regard to the rights of both par- ties; but if he (grantor) fails or re- fuses to exercise the right, the grantee may make his own selection and will be protected in the use of it * * *." VII. "What, if any, is the law relative to the malicious destruction of a line or J?oundary fence by any person?" Section 11482, R. C. M 1921, pro- vides in part: "Any person tearing down, breaking, or injuring any fence or other inclosure, for the pur- pose of entering upon the land or premsies of another without the con- sent of the owner or occupant; * * * shall be guilty of a misdemeanor and shall be punishable by a fine of not less than Ten Dollars, nor more than Five Hundred Dollars, or imprison- ment not exceeding six months in the county jail, or by both such fine and imprisonment; and shall also be liable to the person injured for all damages occasioned thereby." Section 11485 provides for the will- ful and malicious tearing down of fences in the following language: "Every person who willfully and ma- liciously cuts, tears down, removes, or in any other manner injures or destroys any fence or other inelo- 158 OPINIONS OF THE ATTORNEY GENERAL sure of lands, other than public, be- longing to another, is guilty of a misdemeanor, and upon conviction, is punishable by a fine not less than Twenty-five Dollars nor more than Two Hundred Dollars, or by im- prisonment in the county jail not less than thirty days or more than six months, or by both such fine and imprisonment." VIII. "Is a gate which is kept closed along a boundary line fence deemed a portion of the fence and subject to the law of malicious destruction as any other portion of the fence?" The statutes defining fences make no distinction between fences proper and the gates which unquestionably would be construed as a portion of the fence. In this particular your at- tention is called to Section 3, Chap- ter 153 of the Session Laws of 1933, which provides: "There may be maintained in a legal fence a pass so constructed that automobiles and trucks may pass over the same and which will prevent the passage of livestock across said opening without depriving such fence of the charac- ter of a legal fence under the laws of this State." The penalty provided for willfully leaving open a gate in Section 11528, R. C. M. 1921, as amended by Chap- ter 50 of the Session Laws of 1923, is: "Every person who willfully leaves open a gate, when found closed, leading in or out of any in- closed premises, either inclosed by a lawful fence or not is punishable by a fine of not less than Ten Dollars. nor more than Two Hundred Fifty Dollars, or by imprisonment in the county jail not more than three months or by both such fine and im- prisonment. This act will not apply to cities and towns." IX. "In the event that a party is the owner of a tract of land within the grazing area and fences only a por- tion, may he permit his livestock to be turned out on the por- tion of the tract owned by him not under fence which will actually place his livestock into and within the grazing area of which he is not a member of the association?" X. "Is the owner of a tract of land in- cluded within the grazing area of an Association required to fence his tract of land to prevent livestock from entering his tract?" The questions raised in the two in- quiries quoted are closely related and will be answered under the joint head- ing. These questions present an entirely new situation in the State of Mon- tana. There has been no legal deter- mination of many of the issues that may eventually arise by reason of the Grazing Act. Grazing areas combine, quasi public, range rights, with the rights of strictly private undertak- ings, and it is impossible to give a definite opinion without knowing the concrete facts in each case. For your information and guidance, however, we briefly review the law covering public ranges. In the case of public domain, range trespass our Supreme Court in the recent case of Herness v. McCann, 90 Mont. 95, reaffirmed the outstanding rule fixed in prior decisions in hold- ing that: "In an action for damages and destruction of crops by trespass- ing cattle, that where animals are held in herd, their movements being directed by their owner or his em- ployees, who know, or are chargeable with knowledge of, the boundaries of .adjacent property, and they invade such property their willful acts or the negligence of either, such invasion is actionable negligence." On the other hand our courts re- peatedly have ruled in the matter of proof and the amount of damages in stock trespassing cases within enclo- sure, and the statutes provide methods of impounding said trespassing stock. Undoubtedly the owner of land has a right to turn his cattle upon his own land whether fenced or not. Es- pecially is this true when as in this state our laws provide for fencing to keep cattle out. Is not the grazing association required to fence their area so as to restrain cattle from en- tering thereon? In the case of Chilcott v. Rea, 52 Mont. 134 at page 139, the Supreme Court said: "As regards the want of a legal fence, the rule is that when OPINIONS OF THE ATTORNEY GENERAL 159 animals which may lawfully be turned loose upon the public range or high- way and follow their own inclinations, invade premises which are not in- closed by a legal fence, no cause of action arises from such invasion." This rule necessarily may be modi- fied by the element of negligence when the animals are held in herd, and negligence is charged to the own- er of such animals. As answered by the Supreme Court in Schreiner v. Deep Creek Stock Association, 68 Mont. 104 "under" the "legal fence law" privately owned premises must be fenced as required by statutes in order to enable the owner to main- tain an action for damages for tres- pass by the livestock of another. A stock grazing association doubtless is the owner or in possession under lease or other valid permits, and as such comes within the provisions of the "fencing laws" the same as a fee owner. XI. "Is there a Fence Law within the State of Montana and, if so, what are its provisions?" There are several statutes in this state covering the subject of fences. The provisions of the several stat- utes, in some form, relate to legal fences-Section 3374, R. C. M. 1921; the Herd Law; partition and division fencing and penalties for the violation - of the provisions relating to fencing. These several provisions of the law are of considerable length and it is impractical to quote them in detail in this opinion.