author: MR JUSTICE PIGOTT

text:
    KENNEDY, Respondent, v. DICKIE, Appellant.
    (No. 1,430.)
    (Submitted March 11, 1902.
    Decided July 14, 1902.)

      Forcible Retainer — Pleading—Negatives Pregnant.

    1. Code oí Civil Procedure, Sec. 2081, Subd. 1, provides that forcible detainer consists in the unlawful holding of real estate by force or threats of violence, whether the same has been peaceably acquired or otherwise. Subdivision 2 provides that it also consists in the unlawful taking possession of land in the night time or in the absence of the owner, and the refusal to surrender the same on five days’ notice to the former occupant, and that an “occupant,” within the meaning of the second subdivision, is one who within five days preceding such unlawful entry was in peaceable and undisputed possession. Section 2092 provides that plaintiff in forcible detainer must show right of possession, but not actual possession, as required in a forcible entry case. The 'complaint in forcible detainer did not allege that defendant tools possession in the night or in the absence of the owners. Held,! that the action was under Section 2081, Subd. 1, and therefore the complaint was not invalid in failing to allege that plaintiff had been in peaceable and undisputed possession within five days before the entry of defendant; the plaintiff not being required to establish such fact either by Subdivision 1 or by Section 2092.
    2. A complaint in forcible detainer showing that defendant has been in possession of the property for over a year is not bad, as showing a defense within Code of Civil 1’rocedure, Sec. 2092, providing that quiet possession for one year by defendant or his predecessor shall be a defense, unless it also shows such possession to have been quiet.
    3. An allegation in forcible detainer that defendant has unlawfully withheld possession by menaces and threats of violence, and still unlawfully withholds possession of the property from plaintiff, is a sufficient allegation of such facts.
    4. where the answer in forcible detainer expressly denies the allegation of a paragraph of the complaint, which charged a forcible detainer, and denies that plaintiff is entitled to possession of the land or has any right thereto, it is error to give judgment for plaintiff on the pleadings, on the ground that the answer raises no issues of fact.
    5. A negative pregnant allegation in an answer, admitting by implication a material fact alleged in the complaint, does not operate to prevent an express denial of such fact from putting it in issue.

      Appeal from District Court, Yelloivstone County; C. H. Loud, Judge.

    EoRCtbijd detainer by Edward B. Kennedy against William Dickie. From a judgment for plaintiff, defendant appeals-.
    Reversed.

      Mr. B. T. Allen, Mr. T. J. Walsh, and Mr. Eustace Wheeler, for Appellant.

      Mr. O. F."Goddard, for Respondent.
   MR JUSTICE PIGOTT

delivered the opinion of the court.

This is an appeal by the defendant from a judgment on the pleadings entered for the plaintiff in proceedings which are supposed to constitute an action under the provisions of Chapter IV of Title III -of Part III of the Code of Civil Procedure, entitled “Summary Proceedings for Obtaining Possession of Real Property in Certain Cases.” The chapter comprises what is commonly called the “Forcible Entry and De-tainer Statute.”

In his oral argument and in his brief, counsel for the plaintiff stated that the complaint, when filed, was intended as the commencement of an action in ejectment, but was amended by interlineation, with the defendant’s-consent, so- as to change the cause to one for forcible detainer. Ilis statement is supported by the condition of the pleadings; the complaint particularly being so incumbered with immaterial matter that much difficulty has been experienced in the effort toi determine what issuable allegations of ultimate facts the complaint was designed to present, and, by fair interpretation of its language, contains. Seeking to show title in himself for the purpose of his intended action of ejectment, the plaintiff alleges, in substance, that on or about May 24, 1895, he, being then and ever since a citizen 'of the United States, and qualified to enter a homestead, entered upon, and took possession of, as a homestead, under the laws of the United States, a certain 160-acre parcel of land subject to such entry, including the 40 acres here in controversy ; that immediately after taking possession he put upon the land a tent for the habitation of himself and his family, and on May 30, 1895, he -erected a substantial dwelling house thereon and moved into1 it, and, with his family, has continuously occupied and resided on the lands from that time down to the beginning of the action; that when he entered and took possession it vTas his bona• fide intention to enter and occupy the same as a homestead under the laws of the United States, and to establish thereon a home for himself and his. family, and that in 1895, 1896, 1897 and 1898 he cultivated a part of the land as a garden, cut hay from other parts, and a part he inclosed with a substantial fence; that as soon as the lands were subject to entry, namely, on September 9, 1895, he filed on the lands as a homestead, obtained the usual certificate, and ever since has intended, and now intends, to malee final proof and acquire title thereto; that a contest of plaintiff’s entry by the defendant was determined by the secretary of the interior in favor of the plaintiff, and that his homestead entry is valid and intact. For the purpose of converting the complaint into ■one under the statute, the plaintiff proceeds: “(6) That on or about the 28th day of May, 1895, and while plaintiff was so possessed and entitled to the possession, of said lands and premises, the defendant did, on or about the day* and year aforesaid, without right or title, enter into and upon a part of the said lands, to^wit, the northwest quarter of the northwest quarter (N. W. 1/4 of N. W. ]4) °f section thirty-five (35), township one (1) north, of range twienty-six (26) east of the Montana principal meridian, containing forty (40) acres, and ousted and ejected the plaintiff therefrom, and ever since that day lias, by force and by menaces and threats of violence, unlawfully withheld and still withholds, the possession thereof from the plaintiff, to liis damag’e in the sum of five hundred dollars ($500). * * * (8) That on oir about the 22d day of October, 1898, the plaintiff demianded of the defendant, in writing duly served up-on the defendant, at the county of Yellowstone, the possession -of said lands so unlawfully and forcibly held by the defendant, and that the defendant should remove himself and his family and all of his personal effects and property from s'aid lands) and also to not remove from said lands and premises any tenements, erections, buildings, fences, or other improvements situate thereon or attached thereto ; but to vacate or deliver possession of said lands or premises, or the said improvements, erections, buildings and fences, the defendant has ever refused and neglected, but still continues to so forcibly, unlawfully, and wrongfully hold the said lands and premises.”

By his answer (the negatives pregnant being first rejected) the defendant denies that the plaintiff entered upon -or toolc possession of the lands; denies that it was unoccupied or unappropriated; denies that the plaintiff ever erected a tent or house thereon, or that he resides thereon; denies the averments touching cultivation and thei plaintiff’s intent to occupy the land as a liomlestead; denies the validity of the decision of the •secretary of the interior and the subordinate federal officers in favor of the plaintiff; denies the allegations of the eighth paragraph; “denies that said plaintiff is entitled to the possession of the said lands so described, or to any part thereof, or to the improvements thereon; and denies that said plaintiff has any rights title, or interest in or to said lands described in said complaint, or ever had the possession thereof-;” and alleges that the defendant himself is entitled to. the possession of the lands and improvements. On these pleadings, judgment in favor of the plaintiff was entered upon the ground that the answer neither raised an issue nor set up an affirmative defense.

, Section 2081 of the Code of Civil Procedure reads- as follows: “Every person is guilty of a forcible detainer who either: (1) By force or hy menaces, and threats of violence,unlawfully holds and keeps the possession of any real property or mining claim, whether the same was acquired peaceably or otherwise; or (2) who-, in the night time> or during the absence of the occupant of any lands or mining claim, unlawfully enters upon real property, and who-, after demand made for the surrender thereof, for the period of five days refuses to surrender the same to such former occupant. The occupant of real property or mining claim, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisputed possession of such lands.”

The plaintiff contends that the proceedings were instituted under subdivision 1 of that section, while the defendant insists that the proceedings^ in so far as they can properly be regarded as founded upon tbe forcible entry and detainer statute, manifestly rest upon the provisions of subdivision 2 of that section. If the proceedings were instituted under either of the subdivisions, there must be applied to them the provisions of Section 2092 of the Code of Civil Procedure: “Sec. 2092. On the trial of any proceedings for any forcible entry or forcible de-tainer, the plaintiff -shall -only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible -entry, or, was entitled to- the possession at the time of the forcible detainer. The defendant may show in his defense, that he or his ancestors, or those whose interest in such premises he claims^ have been in tbe quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest, therein is not then ended or determined, and such showing is a bar to the proceedings.” Belying upon the provisions of Subdivision 2 of Section 2081, the defendant argues that the complaint is fatally defective because it omits h> state that the plaintiff was, within five days preceding the unlawful, entry, “in the peaceable and undisputed possession” of the lands. For such contention we find no warrant. Section 2080 specifies two conditions, relations, or series of acts, either of which is declared to constitute a forcible entry. Section 20S1 likewise specifies the acts which shall render the perpetrator guilty of a forcible detainer. Section 2092 prescribes the proof which must be adduced in support of an action for a forcible entry, and also the proof required to sustain an action for forcible detainer, each wrong or cause of action having been described and defined by Sections 2080 and 2081. If the object of the action is to obtain the remedy for a forciblé entry, the proof required by Section 2092 is twofold: (1) Proof of the forcible entry as defined in Section 2080; and (2) proof that the plaintiff “was peaceably in the actual possession at the time of the forcible entry.” Tf the purpose of the action is to obtain relief from a forcible detainer, proof must be made under Section 2092 (1) of the forcible detainer, as defined in Section 2081; and (2) of the plaintiff’s right to the possession at the time of the forcible detainer. Hence the only provisions of the statute which demand allegations or proof in respect of the plaintiff’s actual or peaceable possession are those which have to do with actions for forcible entries and those applicable to actions for forcible detainers, as defined by Subdivision 2 of Section 2081.

The averments with respect to an actual ouster are not sufficient as a statement of a forcible entry within the meaning of Section 2080, the plaintiff distinctly disavows such purpose, the defendant does not contend that the action is for a forcible entry, and we think it cannot be so regarded. Unless; therefore; such requirement is embraced within Section 2081, the plaintiff need not allege or prove actual or peaceable possession. It is to be remembered that the section last mentioned does not prescribe tbe proof required to maintain an action, but merely defines the acts which shall constitute a forcible detainer. The definition given by Subdivision 1 does not include the element of possession a.t any time hy a plaintiff; if a defendant has com'mitted the acts there described, he is guilty of a forcible de-tainer, even if the plaintiff has never been in possession of the land detained. The acts which Subdivision 2 denounces' as- a forcible detainer must (except the refusal to surrender the property) he committed “in the night time, or during' the absence of the occupant:” and, to avoid uncertainty as to the legal significance of the word “occupant,” that word is defined as describing “one who, within five days preceding such unlawful entry, was in the peaceable and undisputed possession of such lands.” The definition is confined to the one word, and is further expressly restricted to its use “within the meaning of this subdivision,” — that is, Subdivision 2. It therefore seems quite clear that a forcible detainer (except as to the element of refusal to surrender the property), under Subdivision 2, must be committed either “in the night time,” or “during the absence of” “one who-, within five days preceding such unlawful entry, w!as in the peaceable and undisputed possession of such lands.” The complaint being silent with respect to an entry in the night time or during the absence of the occupant, none of the provisions of Subdivision 2 are applicable. We have already held that none of the provisions of the forcible entry section are pertinent. The conclusion is that this is an action for a forcible detainer under- the provisions of Subdivision 1 of Section 2081; that no allegation of the plaintiff’s actual, peaceable, or undisputed possession is essential; and that in this respect the complaint is good.

Further objection is made that the complaint is bad because, as the defendant asserts, it shows upon its face that he had been in possession of the lands for a longer period than one year next before the commencement of the proceedings; and he invokes the last part of Section 2092, supra. Suffice it to' say that we need not pause to consider what would be the result if from the complaint it appeared that the defendant had been in “quiet possession thereof for the space of one whole year together next before the commencement of the proceeding's, and that his interest therein is not then ended or determined.” Nowhere in the complaint does it appear that the defendant was ever in the quiet possession.

Another objection to the complaint urged in this court by the defendant is that it is fatally defective because there is a want of any allegation that the plaintiff was entitled to the possession of the land at the time of the forcible detainer. We have already observed that in an action for a forcible detainer the evidence demanded by Section 2092 must establish two facts: First, a forcible detainer as defined in Section 2081; secondly, that the plaintiff w]as entitled to the possession at the time of the forcible detainer. An allegation that a party is entitled to possession is usually a mere conclusion of law; but in actions for forcible detainer such an allegation is sufficient, without setting out the facts upon which it is based.' This difference results from the peculiar nature of the action and of the issues that can be presented. Such a statement; or its equivalent in the form of facts averred, is essential. This the plaintiff admits, but argues that the complaint, taken as a, whole, discloses his right to' possession at the time of the forcible detainer. The question thus raised is one of some difficulty and doubt, and, as the judgment must be reversed for the reason .presently to be stated, we prefer to reserve the point. Upon remand the plaintiff will doubtless be afforded an opportunity toi amend the complaint. Under these circumstances, a determination of the point seems to be unnecessary.

As we have already decided, the complaint attempts (at least) to state a cause of action under Subdivision 1 of Section 2081 of the Code of Civil Procedure. One of the essential allegations of such a complaint is that the defendant by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of the real estate. In this particular we think the complaint not open to: objection. The other essential allegation is that the plaintiff was entitled to the possession at the time of the forcible detainer; we assume, for present purposes, the sufficiency of the complaint in this regard. Does the answer contain a denial of either of these vital allegations ? If it does, an issue was framed and tendered, and the judgment is erroneous. Examination of the answer discloses that it contains an express denial of the allegations made in the eighth paragraph of the complaint, among which is one charging the defendant with the forcible detainer; hence this averment is traversed. Upon the other essential allegation — which, we assume, appears in the complaint — an issue is framed; for in his answer the defendant (referring, of course, to the time when the complaint was filed) expressly “denies that said plaintiff is entitled to the possession of the said la.nds so described, or to any paid thereof, or to the improvements thereon, and denies that said plaintiff has any right, title or interest in or to said lands described in said complaint,” and, by way of argumentative denial, asserts that he himself is entitled toi the possession. Counsel for the plaintiff suggests that, because some of the denials are pregnant with admissions of the essential allegations of the complaint, the express denials are without force; but this cannot be correct, for admissions arising by mere implication from negatives pregnant are overcome and nullified by express denials. In the law of pleading, admission by failure expressly to controvert is implied admission inferred from silence; a negation which falls short of a good denial is silence (or equivalent to silence) pregnant with implied admission. Express denial of an allegation so impliedly admitted destroys the admission inferred from silence or an imperfect negation, and raises an issue. It therefore appears that the essential allegations of the complaint are traversed by the denials contained in the answer.

Holding, as we do, that the answer states, by way of denial, facts sufficient to constitute a defense, it follow© that the judgment is erroneous and must be reversed. The judgment is therefore reversed, and the cause remanded. Remittitur may issue forthwith.

Reversed and remanded.


source: Caselaw Access Project

author: MR. JUSTICE PIGOTT Me. Justice MilbubN:

license: Public Domain

text:
    BEINHORN, Respondent, v. GRISWOLD, Appellant.
    (No. 1,443.)
    (Submitted April 16, 1902.
    Decided July 14, 1902.)

      Unfenced Land — Trespassing Cattle- — Injury — Landowner’s Liability.

    Political Code, Sec. 3258, and the custom of the state making the maintenance of a legal fence by a landowner a prerequisite to recovery for trespass by domestic animals of another, do not charge the landowner with the duty to keep cattle lawfully at large from coming on his land, or make their entry thereupon rightful, so as to make him liable for injuries to such animals caused by the existence of dangerous agencies on the land, but not wantonly or intentionally caused.

      Appeal from District Court, Lewis and Clarice Couniy; Henry C. Smith, Judge.

    Action by Ered. Beinhom against L. S. Griswold. From a judgment for plaintiff, defendant appeals.
    Reversed.

      Mr. Edward G. Russel, and Mr. Lewis Penwell, for Appellant.
    The issue is negligence. Actionable negligence is the failure to do one’s legal duly to others. The law declares that it is man’s duty to use such reasonable care in the use of his own property as to avoid injury to the lives or property of others'. Widely divergent facts have given great latitude to this expression “reasonable care.” It must be read in the light of the mlaxim that every man is entitled to the proper use and enjoyment of his property without unreasonable restrictions or limitations. Greater accountability is exacted for active injury than for passive or permissive injury. The relations of injured to injurer is an essential factor. The law exacts less care in the case of a mere trespasser than in that of one coming upon the premises by the invitation, express or implied, of the owner. The law questions in this case may be resolved into the following: (1) Are tbe owners of animals, lawfully running at large, trespassers, when sueb animals enter upon tbe unenclosed lands of a legal occupant? (2) Wba.t degree of care is it the duly of sucb legal occupant to give to a,void injury to- such trespassing animals? (3) Will tbe fact that dangerous appliances or substances-, used by him in tbe lawful and normal conduct of bis business, upon bis premises, may prove to be an attraction to trespassing animals, be construed by tbe law as changing tbe status of their owners from that of trespassers to- that of invited guests?
    Section 5152 of the Political Code reads as follows.: “The common law of England, so far as it is not repugnant to- or inconsistent with the constitution of the United States, o-r the constitution or laws of this states or of the codes-, is the rule of decision in all the courts of this state.” Under the common law, every unwarrantable entry of a m|an or of his cattle upon the premises of another, enclosed or unenclosed, was a trespass^ and the trespasser was liable in damages. (3 Bl. Cbm. 209, 211.) Our state has adopted laws barring the remedy for such damages, unless tbe lands are enclosed by a fence of stated construction. (Chap-. XIII, Title VII, Part III, Pol. Code.) But tbis court has said in Forrester v. B. & M. Mining Co., 21 Mont 556: “A statute is not presumed ta work any changes in the rules of the common law beyond what is expressed in its provisions, or fairly implied in them, in order to give them full operation. Por tbe written law to effect a repeal of those doctrines of the common law which are not unsuited to our condition, the intent of the legislature to bring about the change must he cleár; and, if the intent be not fairly evident^ the common laws remains the rule of decision.” (Citing Arthur v. Bolcenham, 11 Mod. 150; Wilbur v. Crane, 13 Pick. 284; Hallman v. Bennett, 44 Miss. 323; Endlich on Interpretation of Statutes-, Sec. 127.) This court has applied- this doctrine .and has fully established the commion-law rights of owners of land as thus modified by statute in Momroe v. Cannon, 24 Mont. 316, citing Bileu v. Paisley 18 Ore. «47, in which the court well said: “The rule (as to trespass) was not founded on any arbitrary regulation of the common law, but was an incident to the right of property. It is a parti of that principle which allows every man the right to enjoy hist property free from molestation or interference by others; it is simply the recogni-. tion of a natural right. The rule in question did not require to be adopted in order to be in force. It always exists where the right of private dominion over things real is recognized. It pertains to ownership. The legislature, in the exercise of the police powers of the state, may, no> doubt, require the owners of land to fence them in a certain manner, and in default thereof to withhold from them a remedy for a trespass committed thereon hy animals running ati large; * * * but to hold that one man has a right to permit his stock to go upon the lands of another, if not protected by a material inclosure, would be holding, in effect, that a man did not own what belonged to him. The legislature cannot legalize such a trespass.” (Stewart v. Benninger, 138 Pa. St. 441; see, also, Addington v. Canfield, 66 Pac. 358; May v. Poindexter, 47 L R. A. (Va.) 588.) Cattle lawfully running at large are therefore trespassing when they enter upon the unenclosed lands of a legal occupant. Their grazing thereon is not even permissive; it is certainly not a matter' of right. (Egan v. M. 0. By. Go., 24 Mont. 572.) One of the best expressed and most quoted decisions in point is that of Gibson, J., in Knight v. Abert, 6 Pa. St. 472. See, also; cases cited in Monroe v. Gannon, supra, especially, Lazarus v. Phelps, 152. IT. S. 81; Si: Louis Cattle Go. v. Vaught, 1 Tex. Civ. Ap. 388; Norton v. Young, 6 Colo. Ap. 187; U. P. By. Go. v. Bollins, 5 Kan. 167; McNeere v. Boone, 52 Ill. Ap.. 181.
    2. Whati degree of care is it the duty of a legal occupant to give to trespassing animals ? This court has stated the general rule as to trespassers in Egan v. M. G. By. Go., supra. A trespasser cannot recover for injuries not wantonly or wilfully inflicted. (O’Leary v. Broolcs Elevator Go., 7 N. D. 554; City v. Emmelman, 108 Ind. 53; Ahers v. By. Co., 58 Minn. 544; Sweeney v. Old Colony By. Go., 92 Mass. 368; Stendal v. Boyd, 73 Minn. 53; Frost v. B B. Co., 64 N. H. 220; Evansville B.

      B. v. Griffin, 100 Ind. 221; Thompson Neg. p. 1183, n; Daniels v. B. B. Go., 154 Mass. 349; Buck v. Amory Mfg. Go., 44 A, (N. H.) 809; Bedigan v. B. B. Go., 155 Mass. 44, 14 L. K. A. 276; Hounselv. Smyth, 97 Eng'. Conn. L. Hep. 97, 731; Amer. •Law Begistex, Vol. 2, N. S. 196.) “A mtere passive acquiescence on the part of the owner or occupant, in the use of real property by others, does not involve him in any liability ta them for its unfitness for such use.” (Shearman & Bedfield on Neg. Sec. 705.) “The rule is that he who enjoys the permission or passive license is only relieved from the responsibility of being a trespasser, and must assume all the ordinary risks attached to the nature of the place or the business carried on.” (Van-derbeck v. Hendry-, 34 N. J. Law, 467; see Egan v. M. 0. By. Go., supraj Beardon v. Thompson, 149 Mass. 267; Woodruff-, Admr. v. Bowen, 136 Ind. 441; Taylor v. Haddonfield Turnpike Go., 58 N. EV (N. J.) 707, 41 L. R. A. 831; Fitzpatrick-v. Glass Go '., 39 A. 675.) The same rule applied to adults is applied to children. (Byan v. Tomar, -87 Nl W. 644; Felton v. Aubrey, 74 Eed. 350, and cases cited (Ky.) ; Thomas v. Chicago-, etc., By. Go-. (Ia.), 72 N. W. 783; Brogue v. N. O. By. Go. (Pa.), 43 A. 987; Bitz v. Oity of Wheeling (W. Va.), 31 S. W. 993.; Baltimore-, etc. By. Go. v. Bradford (Ind.), 49 N. E. 390 (two>-y0ar-old child) ; Ala. G. S. B. B. Go. v. Moorer (Ala.), 22 S. 900; Louisville B. B. Go-, v. Yittoe’s Admr. (Ky.), 41 ,S. W. 269; Shea v. Concord & M> B. B. Go. (N. H.), 41 A. 774.) Such being the law as to human beings, even children, where human life is at stake, it certainly applies more strongly in the case of a trespass through animals, which are simply property, in the possession and under the will and control of their adult owners.
    Shearman & Jtedfield on Neg. Sec. 720, says: “If cattle stray upon unenclosed land and injure themselves by eating deleterious matter which has been left there by the land owner, without any malicious intent, the latter is not liable to the owner of the cattle.” (See also Thompson on Negligence, p1. 298.) They Ate Bush v. Brainard, 1 Cow. 78, where a straying cow was killed by drinking maple syrup on a neighbor’s unenclosed ' land; Hess v. Lupton, 7 Ohio, 216, where cattle drank brine, exposed on defendant’s land; Durham v. Musselman, 2 Blackf. 96, where a straying’ horse was killed by a falling tree, fired by defendant on his unenclosed land. In Tonawanda R. R. Go. v. Hunger, 5 Denio, 255, a-trespassing horse fell into an unguarded pit; the court said: “Negligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative and where it has no existence between parties there can be no such thing as negligence in the legal sense of the term. A man is under no obligation to be cautious and circumspect toward á wrongdoer.” (See Knight v. Abert, supra.) In McGill v. Compton, 66 Ilk 327, there was an agreement between plaintiff and defendant that the live stock of each could pastime on the other’s land; plaintiff’s horse fell into defendant’s unguarded slough well. Held, he could not recover. This is stronger than the trespass cases-, plaintiff being a licensee by agreement.
    A person having a poisonous tree on his land is not liable for injury to trespassing cattle. (Pointing v. Noakes, 10 Rep-. 265, 2 Q. B. 281; see also McNeer v. Boone, 52 Ill. Ap-. 181; Hayden v. Rust, 39 Ill. 18Hughes v. Hannibal Ry. Go., 66 Mo. 325; Ker.wháker v. Cleveland Ry. Go<., 3 O. St. 172; Herold v. Meyers, 20 la. 378; R. R. Go. v. Carraher, 47 Ill. 333.) The distinction between permissive and active injury is well set forth in Morrison v. Cornelius, 63 N. C. 346. In this case defendants left liquid containing saltpetre where plaintiff’s cattle obtained easy access to- it and died. Ferguson v. Miama Powder Go., 9 O. Cir. Gt. Rep. 445, is a ease where nitrate of soda was left exposed by defendant and plaintiff’s cattle ate of it and died. Held, defendant not liable. In U. P. Ry. Go. v. Rollins, 5 Kan. 167, the court said: “The plaintiffs did infringe upon defendants’ rights. They were wrongdoers themselves. Hence the defendants were absolved from all but slight care and liable only for gross or wanton, negligence.” We take it that the foregoing decisions and many others that might be cited establish as law -that only slight care is demanded towards trespassers; in fact, only to refrain from wanton and wilful injury; and that tbe court was wrong in defining the degree of •care demanded by law of the defendant to- free him from the liabilities of legal negligence.

      Messrs. Stranahan & Stranahan, for Respondent.
    Respondent’s view of this case is that there is really but one question to be considered upon this appeal, viz.: Whether or not a land owner, who negligently leaves exposed, upon his unenclosed premises, where he knowis stock are wont to stray, dangerous places or substances, whereby another’s cattle straying thereon are injured, is liable for such injury. Cattle at large in this state are not trespassing when they stray upon the unenclosed lands of another. And owners have a right to permit them to run at large. (See Smith v. Williams, 2 Mont. 195 ; Lyman v. Fani, 9 Mont 61; McMasters v. Mont. Union B. Go., 12 Mont. 168; Monroe v. Cannon, 24 Mont. 316.) The old common-law. rule relative to cattle running at large is not, nor was it ever, in force in this state nor any of the western states, with perhaps one or two exceptions. In addition to’ the Montana cases just cited, see Kerwhailcer v. Cleveland By. Co., 3 O. St. 172; Young v. Harvey, 16 Ind. 314; New Orleans J. & G. N. B. B. v. Fields, 46 Miss. 573; Jones & Norms v. Nichols, 46 Ark. 207; Houghey v. Hart, 62 la. 96; Calkins v. Matthews,. 5 Kan. 191; Buford v. Houtz, 133 TJ. S. 321; Fennel v. Sen-guin St. By., 70 Tex. 670; 2 Ami. & Eng. Ene. (2d Ed.), 356 and 16 Id. 478, and cases cited; see also p-. 494, same authority; 2 Sher. & Red. on Neg. (2d E!d.), Sec. 419; Id. 957; Thomp’-son on Neg. 298, New Ed. Yo-1. 1, Sec. 957. The custom of the people of this state to allow, cattle to' run at large has become common law1 thereof and of many western states-. The common law is the practice of the people by universal custom, and consent. (1 Bouvier’s Diet. 370; 6 A. & E. Law, 2d Ed., 271.)
    It is a well established rule of equity that an injunction will be granted to prevent repeated trespasses. It wasi upon this theory that the action in Buford v. Houtz, supra, was brought to restrain defendants from permitting their sbeep from repeatedly trespassing, upon plaintiff’s unenclosed lands, and the Supreme Court of the United States held that there was no trespass, and that plaintiff by leaving bis land unenclosed granted defendant an “implied license” for their sheep to stray or roam upon such unenclosed land. That such license is implied, see Sher. & Bed. on Neg. Yol. 2, New Ed. 419; Bay on Neg. 592; Houghey v. Hart, supra; N. O. B. B. Go. v. Fields, supra; Morris v. Fraker, 5 Colo. 425. •There are many other cases upon this proposition that might be cited. But, suppose that we admit for the sate of argument that plaintiff’s cattle were technical trespassers. We yet contend that the judgment should be affirmed. See Low v. Balt Lake Gity, 44 Pae. 1050; Sher. & Bed. on Neg. par. 97. Again, since the decision of Buford v. Houtz, and Montana cases, cited supra, it cannot be reasonably contended but what plaintiff has a right to allow his cattle to run at large upon the public dom’ain of the United States. Then to that extent, at least, plaintiff had a right of pasturage, subject to the same right in others, adjoining defendant’s right of properly. They were then in the same position as owners of adjoining closes. If defendant had dangerous substance or place, or maintained a dangerous business and so negligently conducted it as to injure plaintiff’s cattle, or plaintiff’s cattle were injured by reason of getting through his defective fence, defendant was liable though a technical trespass may have been committed. Thus if A. and B. are adjoining laud owners, and A.’s cattle get through B.’s defective fence and are injured upon B.’s laud through any negligence of B., .the latter is liable, though A.’s cattle have no right on B.’s land and are trespassing there. (.Baxton v. Bacon, 31 Vt. 540; White v. McNeil, 33 N. Y. 731; Hurly v. Neil, 2 Hump. 551; Lawrence v. Jenkins, 8 Q. B. Law! Bep. 275; Powell v. Salisbury, 2 Y. & J. E'xch. 391; Colvin v. Sutherland, 32 Mo. App. 77; Crowhurst v. Amersham Burial Bd., 4 Ex. Div. 5, 27 Weeks Bep. 95 ; Firth v. Bowling Iron Go., 3 Cbm. PI. Div. 254; 2 Sher. & Bed. on Neg. par. 662, and cases.) The owner of the land is bound to take notice of tbe natural propensities of domestic animals. (Bay on Neg. 598; Sisk v. Gnimp, 112 Ind. 504.) So-, that even if tbe oom: mon law were applied toi our conditions, tbe owner of cattle at'large would be entitled to recover for injuries1 done if resulting from tbe negligent use of property by tbe owner. (16 A. & E'. Law, 1st Ed., 419; Bay on. Neg. 597; Golvm v. Sutherland., supra-.) The owner of cattle lawfully running at large takes only tbe risks incident to their loss or injury from unavoidable accident. (-Jones & Norris v. Nichols, supra; Rai-ford v. Miss. R. R. Go., 43 Miss. 233; 'Kerwhaker v. R. R. Go., supra; N. 0. J. & G. N. R. R. v. Fields, supra.)

      ■ Section 2296 of tbe C-ivil Code lays down tbe law as to negligence in this state, and creates a duty upon tbe part of tbe appellant in this case to so use bis property as not to negligently injure that of- defendant, and if be fails to perforin that duty be is liable to- plaintiff, unless tbe latter is guilty of contributory negligence. So that there can be no question of defendant’s liability unless plaintiff was guilty of contributory negligence. Tbe respondent bad a right to presume that appellant would use reasonable care and caution to avoid accident to- bis (respondent’s ) cattle from tbe cyanide. (7 A. & E. Law, 2d Ed. 391, cases in note.) Even if plaintiff knew, of tbe danger, or bad reason to apprehend it, it does not necessarily follow that be was guilty of contributory negligence. (Id.- 392.) Contributory negligence is a question solely for the jury to determine under instructions from tbe court. (I A. & E. Law, 2d Ed., 456.) Tbe notice that appellant was conducting a cyanide process in which if properly conducted there was necessarily no harm, cannot affect bis (respondent’s) right to turn bis cattle at large. (Brown v. II. & St. J. Ry. Go-., 27 Mo. App1. 394; Kerwhaker- v. R. R. Go<., supra.) The. only contributory negligence, if it can soi be denominated, of respondent rests upon tbe theory of bis allowing bis cattle to roam; at large. That this is not negligence where the common-law rule upon this question does not prevail, see McMaster v. Montana, Union, supra. (S. F. & A. W. Ry. Go. v. Geiger, 21 Fla. 669; Mc-Pheters v. Hannibal R. Go., 45 Mo'. 22; Houghey v. Han't,

      supraj Jones v. Nichols, supra; McQoy v. Gal, Pac. By. Go., 40 Cal. 532.) This is the rule in a great majority of states. (16 Am. & Eng. Law, 2d Eld., 378.) We admit, on the other hand, that where the old common-law. rule relative to. cattle running at large does prevail, that the owner of stray cattle is guilty of contributory negligence in allowing them to run at large. The two rules in this respect are aptly stated in 16 A. & E. Law, 2d Ed., 478-9.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

Action to recover damages for injuries alleged to have been caused by the negligence of the defendant. The complaint states that the defendant negligenty left exposed a vat containing poisonous liquid; that hy reason of such negligence certain cattle of plaintiff and of one Holm drank from the vat some of the liquid, and died from the effects of the poison; and that Holm assigned his demand for damages to the plaintiff. The answer puts in issue the allegation of negligence, and avers that the death of the cattle was caused by the carelessness of the plaintiff and Holm. The plaintiff secured a judgment, and the defendant moved for a new trial on several grounds, one being the insufficiency of the evidence to prove negligence on the part of the defendant. From the order denying a new trial the defendant has appealed.

The facts upon which the plaintiff bases his allegations of negligence are substantially these: During the year 1898 the defendant was the lessee in possession of the Non-Such gold mine and mill site. The property was not inclosed by a legal fence. For the proper conduct of his mining operations he employed the cyanide process, using large quantities of poisonous chemicals, consisting principally of cyanide of potassium, which he diluted with water, and kept in suitable receptacles on the surface of the mining property, but not sufficiently covered to prevent easy access to/ the poisonous solution. In appearance it resembled Water. Cattle of the plaintiff and of Holm, while ranging on the public.domain, wandered over to and upon the defendant’s mine and mill site, and there drank the poisonous liquid contained in the vats or tubs; The defendant knew that the cattle were in the habit of straying upon his uninelosed property, and he had driven them away whenever he saw them there.

The plaintiff insists there is but one question involved, which he states thus -. Is a “landowner who negligently leaves exposed upon his uninclosed premises, where he knows stock are wont to stray, dangerous places or substances, whereby another’s cattle, straying thereon, are injured, liable for such injury?” He argues that, as the defendant’s mining property was not inclosed by a legal fence, the cattle were not trespassing upon his property, but were rightfully thereon, and that therefore he_ owed to the plaintiff the duty so to use his property and conduct his business as not to injure the plaintiff’s cattle; that, in failing to cover the poisonous solution so as to prevent the cattle from drinking of it, he violated this alleged duty, and as such negligence resulted in the death of the cattle, and consequent loss to the plaintiff, the defendant is liable in damages. In support of his contention the plaintiff cites Monroe v. Gcrnnon, 24 Montana Reports, 316 (61 Pac. 863, 81 Am. St. Rep>. 439), where the owner of pasture land was held entitled to recover the value of grass consumed by bands of sheep deliberately and intentionally driven on it by the herder in charge of them; the opinion containing the following language: “If in the case now under consideration the damage sustained by respondent had resulted from trespasses committed by cattle or sheep' or other animals named1 in the statute, lawfully at large, and not under the direction and control of their owner, then appellant’s position wiould be sound.” Neither this language, nor anything said in the opinion, lends countenance to the contention of the plaintiff in the case at bar. The decision does not declare or define any duty owing by the landowner to the owner of straying, cattle. These observations apply also to Section 3258 of the Political Code, which reads: “If any cattle, horse, mule, ass, hog, sheep, or other domestic animal bréale into any inolosure, the fence being legal, as hereinbefore provided, the owner of such animal is liable for all damages to the owner or occupant of the inelosure. which may be sustained thereby. This section must not be construed so as to require a legal fence in order to- maintain an action for injury done by animals running at large contrary to law.” Even if it be conceded that the cattle of the plaintiff Avere not Avrongfully upon defendant’s property, no liability would be incurred from the fact that they were injured Avhile there, unless it was the defendant’s duty to protect from injury all cattle on his property Avhose trespass Avas not of such a nature as to render their owners liable for the trespass. Counsel for the plaintiff urge that, if these cattle Avere not Avrong-fully on the defendant’s property, they must have been rightfully there; asserting that if there Avas no remedy by action, there could not be a trespass. To-this we cannot yield assent

The owner is entitled to the exclusive possession of his land, Avhether fenced or not; and it is beyond the power of the legislature to prescribe, or of custom to create, a right in another to occupy the land or enjoy its fruits. Either Avritten law or custom may withhold from the owner Avho does not fence his land a remedy for loss suffered by reason of casual trespasses by cattle Avhich stray upon it, and may give a remedy for such trespasses to those only Avho inclose their land. By custom as Avell as by statute the common law of England has been so modified in Montana. This is undoubtedly a legitimate exercise of the police poAver. It falls far short, however, of conferring a legal right to dispossess the nonfeneing owner. He may' at pleasure laAvfully drive the intruding cattle from his land, and keep them away from it. This is his right, for the cattle are trespassing. The OAVlners of domestic animals hold no servitude upon or interest, temporary or permanent, in, the open land of another, merely because it is open. If the landowner fails to “fence out” cattle laAvfully at large, he may not successfully complain of loss caused by such live stock straying upon his uninclosed land. Eor under these circumstances the trespass is condoned or excused, — the law refuses to award damages. While the landowner, by omitting to fence, disables himself from invoking the remedy which is given to those who' inclose tbeir property with a legal fence, and while the cattle owner is thereby relieved from liability for casual trespasses, it is nevertheless true that the cattle owner has no right to pasture his cattle on the land of another, and that cattle thus wandering over such lands are not rightfully there. They are there merely by the forbearance, sufferance, or tolerance of the nonfencing landowner: there they may remain only by his tolerance.

The cattle-owning plaintiff did not owe to the land-owning defendant the duty to fence, his cattle .in; the latter did not owe to the former the duty to fence them out; neither of them was under obligation to the other in that regard. The defendant is not liable in this action unless, he was negligent. There cannot be negligence without breach-of duty. Hence, manifestly, the defendant was not guilty of negligence in omitting to prevent the plaintiff’s cattle from going upon his unfenced land.

As has just been said, the straying of the plaintiff’s, cattle upon the defendant’s land did not involve the violation of any legal duty upon the part of the defendant. ■ There would therefore seem to be no basis for the plaintiff’s charge of negligence on the part of the defendant, unless it consists in the defendant’s alleged failure to protect the cattle from1 injury while on his land. The damage resulted from a permissive, not an active, cause of injury. We are asked to: hold that the law imposed upon the defendant, in addition to the duty of refraining from intentional or wanton injury to the cattle, the. duty so to use his property and so to conduct his mining operations thereon as to avoid all dangers to. which these trespassing beasts might expose themselves. Counsel invoke the provisions of Section 2296 of the Civil Code, which is declaratory of the common law: “Every one is responsible * * *• for an injury occasioned to another by his want of ordinary care or skill in tire management of his property. * * *” Giving to the principle thus expressed full recognition, and measuring the rights of the parties by the test of negligence thus furnished, we are unable to. find in the record evidence of acts or omissions by the defendant constituting negligence in the management of his property. But the plaintiff contends that, irrespective of Section 2296, the defendant has been guilty of negligence- in soi using his. property as to imperil, and in this case actually injure, the property of another. We think the principles- which he invokes have no application to- the facts disclosed by the record. To a naked trespasser or mere licensee by sufferance (if the expression- may correctly be used) the landowner owes the duty to- refrain from any wilful or wanton act causing injury to his person or chattels, and, after discovering that the trespasser is in imjminent danger or immediate peril, to- use reasonable care to avoid an active cause of injury. (Egan v. Montana Central Railway Co., 24 Montana Reports, 569, 63 Pac. 831.) The rule is different in respect of those who go upon property because of the owner’s invitation, either express or implied. As to such persons he is bound, at his peril, to use reasonable care and diligence in keeping his property in safe condition. To a mere licensee or naked trespasser the landowner does not owe the active duty of being diligent or using care in providing against the danger of accident. The distinction is well expressed in Sweeny v. Old Colony & Newport Railroad Co., 10 Allen, 368, (87 Am. Deo. 644) : “All the cases in the books in which a party is sought to- be charged on the ground that he has caused a way or other place to- be incumbered, o-r suffered it to be in a, dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in.doing or omitting to- do an act by which a legal duty or obligation has been violated. Thus a trespasser who comes on the land of another without right cannot maintain an action if he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrongdoers. So a licensee who enters on premises by permission only, without any enticement, .allurement or inducement being held'out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. Bfe goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law! on the owner or occupant to keep his premises in a- suitable condition for those who corn'e there solely for their own convenience or pleasure, and who are not either expressly invited to enter, or induced to eome upon them by the purpose for which the premises are- appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon. * * * The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owiner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it Avas in accordance Avith the intention and design -with Avhich the Avay or' place was adapted and prepared or al-loAved to be so used. The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but, if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe'condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby. ’ ’ The methods pursued by the defendant in the management and use of his property involved no danger to the plaintiff or his cattle, nor exposed either to risk, so long as he and they remained within the limits of the plaintiff’s rights. The contention of the plaintiff rests upon the erroneous theory, heretofore considered, that the cattle owners hold a personal servitude upon, or the right of commons or profit in, all unfenced land, by virtue of -which they are supposed to be entitled, as of right, to use for grazing and pasture all of the uninclosed lands of other persons. Such burden upon or easement in gross in open lands has not been granted, and does not exist. We have already decided that such use, while it does, not constitute an actionable wrong, is not the exercise of a legal right; and as the cattle owner possessed no right to have his live stock upon the defendant’s land, and the latter was clothed with the unquestioned right to drive them away because they were not rightfully there, clearly the defendant had no active duty in respect of them while there. He was, of course, bound to refrain from intentional or wanton injury; if he stood by and knowingly permitted them to drink of the poisonous solution, without making an effort toi prevent them from doing so, he might, perhaps, be liable; but neither of these conditions is in the case at bar.

We think there is no proof in the record which justifies the application of the doctrine of invitation, enticement, allurement or attraction. (Deane v. Clayton, 7 Taunt. 489, 531, 533; Jordin v. Crump, 8 Mees. & W. 782; Ponting v. Noakes (1894) 2 Q. B. 281; Stendal v. Boyd, 67 Minn. 279, 69 N. W. 899; Twist v. Railroad Co., 39 Minn. 164, 39 N. W. 402, 12 Am. St. Rep. 626.) The soundness of the principles upon which the so-called “turntable” and similar cases are supported is not presented for decision.

We have read the opinions which are opposed to the conclusions here announced. They need not be referred to or discussed. We are entirely satisfied that our conclusions are based upon correct fundamental principles.

The order refusing a new trial is reversed, with costs to the appellant, and the cause is remanded-.

Reversed and remanded.

Me. Chibe Justice BeaNtly: I concur.

Me. Justice MilbubN:

Considering only the facts appearing in this case, I concur in the reversal of the order denying a new trial. I do not concur in all that is said in the opinion with reference to absence of duty owing by one person to another who is trespassing upon the premises of the former, or to the owner of live stock which wander upon such premises.


author: MR. JUSTICE PIGOTT

text:
    CARR, RYDER & ADAMS COMPANY, Appellant, v. CLOSSER et al., Defendants. T. C. DAVIDSON, Respondent.
    (No. 1,457.)
    (Submitted May 6, 1902.
    Decided July 14, 1902.)

      Practica — Appeal—Neiv Trial — Record on Appeal — Notice of Intention — Omission from Record — Effect—Reversal—Affidavits in Support of a Motion for a New1 Trial — Bill of Exceptions.

    1. unless tbe notice of Intention to move for a new trial be included in a statement on motion for a new trial-or in a bill of exceptions it will on ' appeal be stricken from tbe record on motion.
    2. where a motion for a new trial was made upon a statement of tbe case which does not contain a copy of the notice of intention or any reference thereto, and such omission was not waived by the adverse party, the order granting a new trial will be reversed.
    3. Decisions upon mere matters of practice will not be disturbed, even if erroneous, unless it is apparent that injustice will likely result from adherence thereto, or that a change will not work a wrong.
    4. Although Code of Civil Procedure, Sec. 1151, provides that a new trial order is deemed excepted to, and no bill of exceptions is required, the mode of presenting on appeal affidavits in support of a motion for a new trial is by formal bill of exceptions, and in this bill should be embraced, unless there is a waiver or an estoppel, the notice of intention. •

      Appeal from District CouH, Deer Lodge County; Welling Napton, Judge.

    Action by Oarr, Ryder & Adams Gompany against Floyd ^ Closser and another. Judgment for plaintiff, and from an order granting a new trial plaintiff appeals.
    Reversed.

      Messrs. McIIatton & Ootter, for Appellant.

      Messrs. Walsh & James, Mr. N. P. Napton, Messrs. McConnell & McConnell, and Mr. C. A. Davidson, for Respondent.
   MR. JUSTICE PIGOTT

delivered tbe opinion of the court.

In the court below the plaintiff recovered judgment against both of the defendants. From an order granting the defendant Davidson a new trial, the plaintiff has appealed.

On motion of the appellant this court, in Carr, Ryder & Adams Co. v. Glosser el al., 25 Montana Deports, 149, (68 Pac. 1043), struck from the transcript the notice of intention to move for a new trial, the opinion containing the following language: “The notice is not made part of any bill of exceptions or statement of the case on motion for a new trial, nor is it a constituent part of the judgment roll provided for and d&fined in Section 1196 of the Code of Civil Procedure; neither is it, in the absence of a bill of exceptions or statement on motion for a new .trial containing it, one of the papers required by Sections 1176 and 1738 of the Code of Civil Procedure to be furnished by copy to this court. It is therefore not a part of the transcript or record on appeal, and must be stricken out.” Counsel for the respondent say that they “hardly know what the court means by the expression, ‘Nor is it, in the absence of a hill of exceptions or statement on motion for a new trial, one of the papers required by Sections 1176 and 1738 of the Code of Civil Procedure to be furnished by copy to this- court.’ ” They inquire whether the court meant to hold that the. notice of intention need not be made part of the record on appeal when affidavits only are used, but must be made part of such record when a statement or bill is used. Counsel have been misled by reading the opinion as it was before correction. Originally the words “containing it” were inadvertently omitted, and in that form the opinion was unofficially reported; but shortly after-wards the omission was observed, and the words quoted inserted. As corrected by the addition of the two- wiords, we think the language may he thus paraphrased: Sections 1176 and 1738 of the Code of Civil Procedure designate the papers- which shall constitute the record on appeal from orders granting or refusing-new trials; the notice of intention to move for a new trial is not one of the papers so designated, nor is it part of the jiidgment roll; unless such notice be included in a statement on motion for a new trial or in a bill, it is not required to be furnished by a copy to this court, is not part of the record, and, on motion, will be stricken out; wlien so included sucb notice necessarily comes up with, tbe statement or bill of which it is part, and in that sense only it is then one of the papers required to be furnished by Sections 1176 and 1738, supra. This interpretation of the opinion, if any be needed, is confirmed by the views expressed in Beach v. Spokane Ranch and Water Co., 25 Montana Reports, 367, (65 Pac. 106).

The motion for a new trial was made upon a statement of the case which does not contain a copy of the notice- of intention or any reference thereto. As was held in Harrigan v. Lynch, 21 Montana Reports, 36, (52 Pac. 642), and in In re Reilly’s Estate, 26 Montana Reports, 358, (67 Pac. 1121), the giving of such notice may be waived, and the omission from the bill or statement of such notice, when one has been given, may also be waived. In the case at bar the notice of intention is not before us, and the record fails to disclose facts from which an inference of waiver may be drawn; on the contrary, the appellant seasonably objected to the statement on the ground indicated, and its counsel now advances the failure of respondents in the respect mentioned as one of the reasons why the order should be reversed. If the rule of Grinnell v. Davis, 20 Montana Reports, 222 (50 Pac. 556), Harrigan v. Lynch, supra, and In re Reilly’s Estate, supra, be followed, the order granting’ a new trial must be reversed. Counsel for the respondents insist that those cases were decided on the erroneous assumption that Sections 1176 and 1738 of the Code of Civil Procedure of 1895 are substantially the same as Section 438 of the Pirst Division of the Compiled Statutes of 1887, and that the cases were wrongly decided. But counsel suggest no reason in support of their contention that was not carefully considered by this court in the two latter cases cited.’ Sections 1176 and 1738, supra, were adopted from the statutes of California after the supreme court of that state had interpreted them in Pico v. Cohn, 78 California Reports, 384, (20 Pac. 706). While Harrigan v. Lynch and In re Reilly’s Estate, supra, were under advisement, the members of this court examined the transcript in Grinnell v. Danis, supra, and found that the new trial proceedings were instituted after these sections had become law. It is probably true that in Qrinnell v. Davis this court should have followed the interpretation which had been placed upon similar sections by Pico v. Golm, and that an injustice was worked by not following it. Doubtless the court would have conformed to the practice established by Pico v. Golm had it been advised of that decision. But the Qrinnell Gase, which was decided in 1897, has never been overruled by or doubted in any subsequent opinion, but, on the contrary, has been reaffirmed, and seems to be correct on principle. That decisions upon mere matters of practice be not disturbed, even if erroneous, is of prime importance. It is most desirable that the practice be settled and known. Unless, it be apparent that injustice will likely result from adherence to such decisions (Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129), or that a change will not Work a wrong, they should not be disturbed. Only the most cogent reasons can justify a court in overturning them. Arnold v. Sinclair, 12 Montana Reports, 248, (29 Pac. 1124), Bookwalter v. Conrad, 14 Montana Reports, 62, (35 Pac. 226), and Rumney Land & Cattle Co. v. Detroit & Montana Cattle Co., 19 Montana Reports, 557, (49 Pac. 395), when read together and compared the one with the other, illustrate the effect of such vacillation and change. In the Arnold and Boolctualter Gases it was expressly held that affidavits, filed in support of a motion for a new-trial or for a change of venue need not be included in a bill, but became proper parts of the record on appeal when copies of them were certified by the clerk: the rule so declared was applicable under the court’s interpretation of Section 438, supra, to- appeals from all orders granting or denying motions based on affidavits. In the Bumney Gase the defendant appealed from an order refusing to vacate a judgment by default; relying upon and conforming to the practice approved in the two former cases, the defendant brought up.the affidavits in support of the motion to vacate by copies certified by the clerk, and the court, after stating that the governing statutes were substantially the same .as the provisions of Section 438, supra, overruled the former cases on this question, declaring that the affidavits must be stricken out because not included in a bill. We may remark, in passing, that in Harrigan v. Lynch, éupra, the. question whether a notice of intention must be in a bill or statement was reserved, and that this court did not in Garr, Ryder & Adams Go. v. Closser change the practice approved in Arnold v. Sinclair, supra, allowing the notice of intention to become part of the record by the clerk’s certificate without other authentication, — the change resulted from the enactment of Section 117 6, supra, which differs materially from Section 438, supra.

To illustrate the supposed impossibility of complying with the rule laid down in Grinnell v. Davis, it is argued that, if the notice of intention must be included in a statement on motion for a new trial or in a bill, it cannot be so included, and therefore cannot come before this court, where the motion is made upon affidavits only. To this a sufficient answer is that under the rule in Rumney Land & Cattle Co. v. Detroit & Montana Cattle Co., supra, Beach v. Water Co., supra; and Cornish v. Floyd-Jones, 26 Montana Reports, 153 (66 Pac. 838), the mode of presenting, on appeal to this court, affidavits: used on the hearing in the district court, is by formal bill of exceptions; and that in this bill should be embraced (unless there is a waiver or an estoppel) the notice of intention, to the end that the court may be informed whether such notice states a ground to which the affidavits are responsive. If a new trial is refused, the party intending to appeal should cause its insertion; if a new trial be granted, the moving party should see that it is inserted in the bill proposed by his adversary. When the motion is made upon a bill or statement only, the bill or statement must be settled, certified and filed before the hearing and decision; when made upon affidavits only, the bill is necessarily taken at the time of the decision of the motion, or within such time thereafter as the law allows. True, a new trial order is deemed excepted to, and no bill of exceptions is required (Section 1151, Code of Civil Procedure) ; but the law as declared by the cases to which we have referred requires the affidavits fi> be set out in a bill in order to be part of the record, and Grinnell v. Davis and tbe other oases cited require the notice of intention to move for a new trial to be made part of the record on appeal.

. We are not persuaded that there are sufficient reasons for this court to change the practice. Let it remain as it is.

The order granting a new, trial is reversed, and the cause remanded.

Reversed and remanded.

Mr. Justice MilburN: I concur.

.The Chief Justice having, when a district judge, tried the action, does not take any part in this decision.


author: MR. JUSTICE MILBURN

text:
    BOUCHER, Respondent, v. BARSALOU et al., Appellants.
    (No. 1,411.)
    (Submitted May 5, 1902.
    Decided July 14, 1902.)

      Appeal — Presumptions — Evidence — Judgment Roll — Res Judicata.

    1. Where the record on appeal showed that on the overruling of objections to the admission in evidence of • the judgment roll in a former action the judge, without objection, directed the stenographer to enter a statement that it had been admitted that an appeal from the judgment was pending, it will be presumed, on appeal in the action in which the judgment roll was introduced, that the fact of the pending appeal sufficiently appeared to the court.
    2. Where a judgment for the ownership of the property was rendered for plaintiff in an action of forcible entry and detainer, and an appeal taken, that judgment was not admissible to show plaintiff’s ownership in a subsequent action in ejectment by the plaintiff in the forcible entry and de-cainer action against the defendant therein pending the appeal in the former action.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

      ActioN by Frank Boucher against Joseph Barsalou and another. From' a judgment for plaintiff, defendants appeal.
    Reversed.

      Mr. W. J. Naughten, and Mr. Bobt. McBñde, for Appellants.

      Messrs. McEatton & Goiter, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

' In April, 1898, there was tried in the district court of Silver Bow county an action wherein Frank Boucher, respondent herein, w;as plaintiff, and Joseph Barsalou, appellant herein, was defendant. The action was under the forcible entry and de-tainer act to recover possession of the same property in question in the suit now before us on appeal. It -resulted in a judgment in favor of the plaintiff, Boucher, and against the defendant, Barsalou, for the ownership of the property. From this judgment Barsalou appealed, and the appeal was pending undetermined in this court at the time of the trial and determination in the district court of the suit now-before us. The present action is one in ejectment. It is not necessary to make a full statement of the case as tried and heard in the court below.

Upon the trial the plaintiff offered in evidence the judgment roll in the first mentioned case, to> the introduction of which the defendants objected, giving as their reason that the court would take judicial notice of the fact that an appeal had been taken to the supreme court, and that the said ease' was then pending in that court wholly undetermined, and that that appeal annulled or superseded the effect of the said judgment roll for any purpose whatever, either as an estoppel or otherwise, and that, therefore, it was incompetent, irrelevant and immaterial for any purpose. The court overruled the objection, and admitted the judgment roll in evidence. The appellants complain of this admission as error. Judgment was rendered and entered for plaintiff. Respondent contends that, inasmuch as the trial court could not take judicial notice of the contents of its records in former actions and proceedings, and the judgment being final as to that court, if appellants were desirous of relying upon an appeal and supersedeas it was incumbent upon them to prove the appeal by the records in the cause.

Examining the duly certified record on appeal we find that it is unnecessary for us to consider this last point for the reason that we discover that the court at the time of the ruling upon the objection which was made to the admission of the judgment roll, directed tho court stenographer to enter in the record a statement that it had been admitted, in connection with the said judgment roll, that the action had been appealed to the supreme court, and that it had not yet been decided by that court. Such appeal was taken in time. There is not anything in the record contradicting, or showing that counsel for plaintiff and respondent in anywise disavowed or attempted to disavow1 this statement of fact thus put in the record. The record must therefore be taken as true. It is not unusual for the court, in presence of counsel for all parties, in order to expedite the trial, to direct the reporter to make a note, in the presence of the court during the trial, to the effect that such and such a material matter is admitted as proven. The presumption is that the statement of the court thus made is true. Hence we must assume that it sufficiently appeared to the court at the time that the said cause first referred to was at that particular time pending on appeal and undetermined in the supremo court. It is apparent also that the only purpose for wdiicli this judgment roll was offered in evidence by the plaintiff was to show that all questions respecting the ownership of the said property had been tried and determined in favor of the plaintiff, Boucher, in the first suit, and.were no longer open to contention. In other words, the sole purpose was for estoppel, and to enforce the judgment, and for this purpose it is clear that it was not admissible. While it cannot be successfully maintained, considering Section 1895 of the Code of Civil Procedure, that the judgment roll in a certain cause cannot be introduced in evidence in another cause for some purposes (Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 26 Mont. 146, 66 Pac. 752; Smith v. Smith, 134 Cal. 117, 66 Pac. 81), it must be beld that an action is deemed to be pending until its final determination upon appeal, or until tbe time for appeal is past, unless the judgment is sooner satisfied; and that such judgment roll should not be admitted in such other cause if such admission is for the purpose of enforcing the judgment which appears in the judgment roll so- admitted.

We have found no case which more carefully and conclusively demonstrates this to be the law than the case of Smith v. Smith, supra, and the cases cited therein.

Perhaps the judgment might have been admissible in the case before us for the purpose of procuring a continuance until after the determination of the first appeal in this court, but such introduction for such purpose would only be made by the defendants. The matter we are considering is the introduction of the roll in evidence by the plaintiff, who- obtained the said judgment in the first case; and, as we have- said, the only purpose of its introduction was to enforce the judgment obtained in the unlawful detainer case, and to prevent the introduction of evidence by the defendants supporting their equitable defense. We realize the difficulties- surrounding the question, but consider that the safest and best rule is the one that we adopt. Otherwise the plaintiff might prevail, and obtain a judgment in the second suit, based upon a judgment obtained in a formerly determined suit, and then the judgment in the first suit might be reversed in the supreme court- on appeal; thus, he would have a valid judgment in the second suit based upon a judgment which did not exist. Obiter: to illustrate, it may be said that, although we do not in this case take judicial notice of the fact, we find by examination of the records of the appeal of the case first mentioned herein that the judgment of the court below was in fact reversed. (Boucher v. Barsalou, 24 Mont. 242, 61 Pac. 1134.)

It is unnecessary to consider the other alleged errors of the court assigned by appellants.

Respondent has moved the court to allow an amendment to the transcript on appeal by inserting as part of tbe judgment roll as introduced in evidence as heretofore mentioned a copy of tbe original complaint wbicb was filed in tbe justice’s court- and amended in tbe district court; also' by inserting a copy of tbe notice of appeal in tbe cause last referred to. Although we consider tbe insertion of these papers as unimportant, we have before the determination herein allowed them to be added'. Reversed and remanded.

Rehearing denied August 2, 1902.

Reversed and remanded.


author: MR. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. RIDDELL et al., Relators, v. DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT, Respondent.
    (No. 1,845.)
    (Submitted July —, 1902.
    Decided July 21, 1902.)

      Board of Medical Examiners — Decision — Appeal — Notice— Title — G ertiorari.

    1. Under Code of Cíyü Procedure, Sec. 1802, providing tliat a notice without the title of the proceeding in which it is made, or with a defective title, is as effectual as if duly entitled, if it intelligibly refer to such proceeding, a notice of appeal from a decision of the board of medical examiners, sufficient in oth^r respects, is effectual, though entitled, “In the Matter of the Application of [the appellant] for a Certificate ’from the Board of Medical Examiners to Practice Medicine and Surgery.”
    2. Where, on an appeal from a decision of the board of medical examiners, a sufficient notice of appeal was served on the board, it is immaterial whether the board was represented at the trial or not.
    3. Under Political Code, Sec. 603, providing that, when an application to the board of medical examiners for a certificate is refused, the applicant may appeal to the district court, and that such appeal shall be conducted in all respects as an appeal from a decision of a board of county commissioners disallowing a claim, the board, when aggrieved by the decision of the district court, may appeal or move for a new trial.
    ApplicatioN for certiorari, on tbe relation of W. C. Riddel l and others, as tbe board of medical examiners of the state of Montana, against the district court of the First judicial district, department No. 2, in and for Lewis and Clarke county.
    Writ-denied.

      Mr. James Donovan, Attorney General, for Relators.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Application for writ of certiorari. The relators' constitute the hoard of medical examiners of the state of Montana, and make the application in their official capacity. The affidavit sets forth, in substance, the following matters, upon which they predicate their demand for relief: At a regular meeting of the board held at the city of Helena on October 2, 3 and 4, 1900, one Arthur Gr. Allan, having previously applied therefor, and having produced a diploma from a school of medicine legally organized and in good standing, whose teachers were graduates of such a school, was- granted an examination by the said board to test his fitness to practice medicine and surgery in the state of Montana. Ho was unable to attain the grade required to entitle him to such certificate, and was so- notified by the- secretary of the board. Thereupon, and within thirty days from the receipt of notice of the action of the board, he served upon the secretary his notice of appeal to the district court of Lewis and Clarke county, as follows: -

“In the matter of the Application of Arthur Gr. Allan for a certificate from the Board of Medical Examiners of Montana to Practice Medicine and Surgery in the State of Montana.
“To the Board of Medical Examiners of the State of Montana, and to tho Secretary thereof: You will please take notice that Arthur G. Allan hereby appeals to the district court of- the First judicial district of the state of Montana-, in and for the county of Lewis and Clarke, from the decision of said board in refusing to issue to him a certificate to1 practice medicine and surgery in the state of Montana, notice of which decision was received by him on the —■ day of October, 1900, and which notice is in words and figures following, to-wit:
“ ‘ Helen a, Montana, Oct. 15tk, 1900. Dear Doctor: I am instructed by the board of medical examiners of Montana to inform you that at the examination held on the 2d, 3rd, and 4th inst. you did not reach the general average required to entitle you to a permanent license to practice. Very truly, Wm. 0. Riddell, Seo’y Rd. of Med. Ex.
“ ‘Arthur Gr. Allan, Butte, Montana.’
“Sanders & Sanders,
“Attorneys for Appellant.
“State of Montana, County of Silver Bcwi — ss.:
“Arthur Gr. Allan, being first duly sworn, says that the foregoing contains a true copy of the notice of tlio decision of the board of medical examiners of Montana in his case, from which he appeals, and further says not. Arthur Gr. Allan.
“Subscribed and sworn to before me this 12th day of November, A. D. 1900. W. M. Ilardcastle, Notary Public in and for the County of Silver Bowt, Montana.”

After service this notice was filed with the clerk of the district court of Lewis and Clarke county. Thereafter, and on April 30, 1901, the matter was brought on for trial before Honorable J. hi. Clements, judge of department 2 of said court, sitting with a jury. On the following day the jury found a verdict in favor of the appellant, — that he was qualified to practice medicine and surgery in the state of Montana. ITp-cn this verdict, judgment wTas entered reversing the action of the board, and declaring the appellant entitled to a certificate.

It is charged by relators that the judgment of the district court is void, and was rendered and entered without jurisdiction, in that the board wras not properly made a party to the appeal; that the said Allan is engaged in the practice of medicine in the state of Montana without other authority than the said judgment, no certificate having been issued to him by the board; that the beard has certain duties in connection with enforcing the law- against those wdio engage in the practice of medicine and surgery without certificates of fitness; that though the said Allan assumes to engage in 'the practice under the authority of said judgment, but in violation of the law, the relators cannot, by reason of its existence, successfully maintain a prosecution against bim; tbat there was and is no right of appeal by the board or the relators from the judgment, because neither the board nor they were made parties to the appeal; and that there is no plain, speedy, and adequate remedy, other than by this proceeding.

The statute (Political Code, Sec. 603) authorizes an applicant to the board for a certificate of fitness, when, aggrieved by a refusal thereof, to appeal to the district court of the county in which the meeting of the said board was held. The appeal must be 'taken within thirty days from the date of receipt by the applicant of the board’s action. It is perfected by serving notice upon any officer of the board, and filing within the thirty days with the clerk of the proper court a verified copy of the board’s decision. “The appeal is conducted to a determination in all respects as an appeal from a decision of a board of county commissioners disallowing a claim.” The particular matter in the proceedings upon which the relators predicate their claim that the judgment is void is that the notice should have been entitled, “Arthur G. Allan vs. The Board of Medical Examiners of the State of Montana,” and that, not being so entitled, it was not sufficient to1 give the district court jurisdiction of the appeal. There is no merit in the contention. Section 1892 of the Code of Civil Procedure provides: “An affidavit, notice or other paper, without the title of the action or proceeding in which it is made or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding.” Though the proceeding upon the appeal in such cases is not properly an action, in the strict sense of that term, but a special proceeding, it should, perhaps, have been entitled as the relators insist; yet the failure of the clerk to so- entitle it did not affect the merits of the controversy. It does not appear from the affidavit whether the board was represented at the trial. This is of no moment, however, since the notice was sufficient to meet the requirements of the statute. It contained intelligible reference to the decision of the board, by which the appellant felt aggrieved, and his purpose to appeal therefrom. That the board, allowed tbe appeal to go by default, if such be the fact, does not affect the case.

Upon the theory that the board is the person aggrieved by the action of the district court, the proper course to be pursued by it was to appeal to this court from the judgment, as provided in the statute (Political Code, Sec. 603), or to move for a new trial. Under the statute no formal pleadings are required. The district court therefore had jurisdiction of the appeal, and to render the particular judgment. Hence the writ must be denied.

Denied.