Musselshell Cattle Co. v. Woolfolk

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Appeal from an order refusing to dissolve a temporary injunction. The injunction was issued upon the verified complaint, without notice. Thereupon the defendants moved for a dissolution, on the ground that the complaint does not state facts, sufficient to entitle the plaintiff to an injunction. — 131 — Omitting the formal parts thereof, the complaint alleges, in substance, that the plaintiff is now, and for a long time has been, in possession and entitled to the possession of several thousand acres of land (giving a description thereof by number of section, township, and range) in Yellowstone county; that it is the owner of part of these lands in fee and holds others under contract of purchase ffom the Northern Pacific Railway Company, and still others under leases from the state of Montana, the latter being school lands; that all of said lands are surveyed and are well stocked with native grasses and valuable for grazing livestock; that there are numerous watering places upon certain described portions thereof, created by plaintiff by the digging of wells and the construction of reservoirs and other like devices for storing and holding water; that these lands are useful to plaintiff solely for the purpose of grazing sheep, cattle, horses, and other stock, and constitute in large measure its winter range; that plaintiff requires all of the grasses thereon and all the water at said watering places for the proper care, feeding, and watering of its stock during all the seasons of the year; that none of the said lands, except a small portion thereof, are inclosed; that defendants are engaged as copartners in the business of breeding, raising, buying, and selling sheep, owning large bands of them, which they graze upon the public range in Yellowstone and Fergus counties, holding the same in herd; that, though they and their employees have been and are well acquainted with the boundaries of plaintiff’s said lands, they have willfully, deliberately, and intentionally on numerous occasions during the past five years, and do now, hold in herd and graze on the said range of the plaintiff, large bands of sheep, and that said sheep have eaten and consumed, and do now consume, the grasses and verdure thereon and also the water at said watering places, to the great detriment and injury of the plaintiff; that, though frequently during the month of December, 1905, and at many other times, the plaintiff has requested the defendants to desist from so using plaintiff’s lands, the defendants have refused to do so, and continue, and — 132 — threaten to continue, their trespasses as aforesaid; and that the plaintiff has no plain, speedy, and adequate remedy at law by which it may obtain redress, because many different suits will be required, and the amount of damage so wrought by defendants cannot be estimated in money. It will be observed that, though it appears that a portion of the lands described are inclosed, ho complaint is made that the defendants have in any way broken, any inclosure or committed trespasses upon lands within it. The wrong complained of is the continued herding of sheep by defendants upon plaintiff’s uninclosed lands, willfully and against plaintiff’s protest, whereby the lands are depastured and rendered useless to the plaintiff. On the argument in this court, counsel for appellants correctly assumed it to be the rule in this jurisdiction that one who knowingly and willfully drives his stock upon lands of another, though uninclosed, is guilty of a trespass and must respond in damages at the suit of the latter. In any event, any doubt on this subject was set at rest by the decision of this court in Monroe v. Cannon, 24 Mont. 316, 81 Am. St. Rep. 439, 61 Pac. 863. In that ease, while recognizing the doctrine that the common-law rule that the owner of domestic animals is bound at his peril to keep them within his own inclosure, so that they may not trespass upon his neighbor’s, has never been in force in this state, this court held that one who knowingly and willfully permitted his sheep to be herded upon the lands of another, and to depasture the same, must respond in damages to the owner thereof. Indeed, this rule prevails generally throughout the public land states and territories, and has been recognized in the federal courts. (12 Am. & Eng. Ency. of Law, 2d ed., 1045, and collection of cases in note; Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305, 33 L. Ed. 618; Lazarus v. Phelps, 152 U. S. 81, 14 Sup. Ct. 477, 38 L. Ed. 363.) The only contention made was that a court of equity will in no case assume jurisdiction to enjoin a trespass, unless the title of plaintiff is admitted or clearly established, and the injury — 133 — being done or threatened is irreparable because not susceptible of complete pecuniary compensation, and that the allegations of the complaint do not make out such a case. There is no rule better settled than that a court of equity will not interfere to enjoin a trespass when there is an adequate remedy at law. It has been repeatedly recognized and applied by this court. (Heaney v. Butte & Montana Com. Co., 10 Mont. 590, 27 Pac. 379; King v. Mullins, 27 Mont. 364, 71 Pac. 155; Harley v. Montana Ore Pur. Co., 27 Mont. 388, 71 Pac. 407.) Though the rule as stated in the case of Heaney v. Butte & Montana Com. Co., founded upon the case of Jerome v. Boss, 7 Johns. Ch. (N. Y.) 315, 11 Am. Dec. 484, was afterward modified in Lee v. Watson, 15 Mont. 228, 38 Pac. 1077, because, in view of the tendency of the later decisions, it was stated too broadly as applied to the facts presented, that case nevertheless, generally speaking, states the rule correctly. An adequate remedy always exists where the damages can be estimated in money, and the .only purpose sought by the action is to determine the amount. If, however, there are peculiar circumstances in the ease, as that the trespass is continued or repeated so that its redress would require a multiplicity of suits, or the injury is of such a nature that it cannot be estimated in money, the courts do not hesitate to grant relief by injunction. Such a case was Sankey v. St. Mary’s Female Academy, 8 Mont. 265, 21 Pac. 23, in which the defendant was enjoined from erecting a fence in an alleyway jointly owned by the plaintiff and defendant and separating their respective premises, so as to close the windows on that side of plaintiff’s house, thus excluding light and air. This was a case of continuing trespass involving rights, injury to which could not be estimated in money. In Palmer v. Israel, 13 Mont. 209, 33 Pac. 134, the plaintiff had a contract to pave and curb a portion of Main street in the city of Helena. While engaged in doing so, he was excluded from the street by respondent and others, and thus hindered and delayed in the performance of his contract. The district court on motion dissolved a temporary injunction granted at the — 134 — commencement of the action, upon the theory that it had no equitable jurisdiction; but, on o appeal of this court, the order of dissolution was reversed. In deciding the case the court quoted with approval from the text of Mr. Pomeroy (Equity Jurisprudence, 2d ed., 1357), as follows: “If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts taken by itself may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction, on the ground of avoiding a repetition of similar actions.” In Lee v. Watson, supra, the defendant appeared to have been guilty of repeated trespasses in plowing, seeding, and cultivating land which belonged to the plaintiff and against the warnings and protests of the plaintiff. Plaintiff repeatedly tried to plow and cultivate his land, but was always interfered with by defendant. This was a case of wanton and repeated trespass. While it appeared further that the ■ defendant was insolvent, yet we apprehend that was only an additional fact tending to show irreparable damage, and that the court would have properly issued the injunction if this fact had not appeared, on the theory that the repeated, wanton trespass was sufficient to give the. court jurisdiction. The facts in the complaint here show a case falling clearly within the principle of the eases of Sankey v. St. Mary’s Female Academy, Palmer v. Israel, and Lee v. Watson, supra. In each of them the right involved was such that an action for damages would have afforded no adequate remedy, conceding that the damages were susceptible of computation in money. So in the present case. The lands of plaintiff are fit for pasturage only. It would hardly be possible to measure adequately in money the value of the wild grasses grown thereon. They cannot be harvested, and their value thus ascertained. Plaintiff could use them only by having his stock eat them, and their value could only be manifested in the improved condition of its flocks and herds. Nor can the amount of water consumed, or its — 135 — value, be estimated. Again, the trespasses are constantly repeated, and though warned to desist, defendants persevere 'in their wrongdoing. Many suits would, in all probability, be necessary to obtain any sort of redress, even if the injury resulting from each separate invasion of plaintiff’s rights could be adequately estimated. The facts also bring it clearly within-the principle stated by Mr. Pomeroy in his text quoted above. Especially is this apparent when attention is called to the condition of the record before us. For the defendants do not in any way controvert the plaintiff’s title, and, for present purposes, we must assume, cannot do so. They make no objection to the form in which the facts are stated in the complaint, but merely rely upon the general principle that a court of equity will not interfere by injunction to restrain a trespass. While upon the final hearing upon the merits, after the issues are made up, other questions may arise which will constitute a complete defense to the plaintiff’s action, upon the record before us we think the injunction was properly issued, and that the order of the court refusing to dissolve it was correct. It is accordingly affirmed. Affirmed. Mr. Justice Milburn and Mr. Justice Holloway concur.