University of Vermont AAHS

Montana Livestock Laws


MONTANA CODE ANNOTATED
TITLE 7 LOCAL GOVERNMENT
CHAPTER 14 TRANSPORTATION
Part 21 General Provisions Related to County Roads



7-14-2130. Control of the movement of livestock on or near county roads
(1) Cattle guards, appurtenances, and gates may be constructed and maintained adjacent to county roads.

(2) Where a county road connects with a state or federal highway which is fenced on both sides, the board of county commissioners may construct and maintain extensions of the fence across the right-of-way of the intersecting county road. The board shall construct a pass which will permit passage of vehicles but will prevent loose livestock from passing onto the state or federal highway. In the extensions of the fence, there shall be maintained a gate to permit the passage of livestock and vehicles.

(3) Each board may construct on county roads passes which shall permit the travel of vehicles but which shall prevent the passage of loose livestock. Where necessary, gates shall be maintained to permit the passage of livestock. Such passes may be removed when, in the judgment of the board, the need therefor no longer exists.


TITLE 60 HIGHWAYS AND TRANSPORTATION
CHAPTER 7 LIVESTOCK ON HIGHWAYS
Part 1 Fencing of Open Range


60-7-101. Purpose
It is the purpose of 60-7-101 through 60-7-103 to balance the tradition of the open range and the economic and geographic problems of raising livestock with the need for safer highways and the policy of taking all feasible measures to reduce the high incidence of traffic accidents and fatalities on Montana highways.


60-7-102. Definitions
As used in 60-2-208 and 60-7-101 through 60-7-103, the following definitions apply:

(1) A "high-hazard area" is a segment of the primary highway system passing through open range where livestock moves on or across the highway often enough, in enough numbers, and with enough ease of access that such animals create a significant traffic safety hazard. Evidence bearing on whether animals on the highway pose a significant hazard includes, without limitation, past accident records, the opinions of persons qualified by experience to evaluate the relative safety of road conditions, and the terrain around the road.

(2) "Livestock" means cattle, sheep, swine, horses, mules, and goats.

(3) A "low-hazard area" is a segment of the primary highway system passing through open range which is not a high-hazard area.

(4) "Open range" means those areas of the state where livestock is raised and maintained in sufficient numbers as to constitute a significant part of the local or county economy and where such animals graze and move about generally unrestrained by fences.


60-7-103. Department to fence right-of-way through open range
(1) The department shall fence the right-of-way of any part of the state highway system that is constructed or reconstructed after July 1, 1969, through open range where livestock present a hazard to the safety of the motorist. Where a fence is constructed, adequate stock gates or stock passes, as necessary, shall be provided to make land on either side of the highway usable for livestock purposes.

(2) The department shall erect a fence in every high- hazard area as promptly as possible, and the cost of such construction is an expenditure for the enforcement of federal-aid highway safety programs. Gates, stock underpasses, water facilities, and cattle guards may be installed where necessary to make the land on either side of the highway usable for livestock purposes or where a public right-of-way intersects the state highway.


TITLE 60 HIGHWAYS AND TRANSPORTATION
CHAPTER 7 LIVESTOCK ON HIGHWAYS
Part 2 Grazing of Livestock on Highways


60-7-201. Grazing livestock on highway unlawful
A person who owns or possesses livestock may not permit the livestock to graze, remain upon, or occupy a part of the right-of-way of:

(1) a state highway running through cultivated areas or a part of the fenced right-of-way of a state highway if in either case the highway has been designated by agreement between the transportation commission and the secretary of transportation as a part of the national system of interstate and defense highways; or

(2) a state highway designated by agreement between the transportation commission and the secretary of transportation as a part of the federal-aid primary system, except as provided in 60-7-202.


60-7-202. Exclusions
Section 60-7-201 does not apply to the following:

(1) livestock on state highways under the charge of one or more herders;

(2) the parts of fenced highways adjacent to open range where a highway device has not been installed to exclude range livestock;

(3) the parts of a state highway or a part of the federal-aid primary system which the department of transportation designates as being impracticable to exclude livestock. These portions of the highway shall be marked by proper signs in accordance with the department's manual and specifications for a uniform system of traffic-control devices.


60-7-203 Penalty.
A person who violates 60-7-201 is guilty of a misdemeanor and is subject to a fine of not less than $ 5 or more than $ 100 for each offense. In a civil action for damages caused by collision between a motor vehicle and a domestic animal or animals on a highway brought by the owner, driver, or occupant of a motor vehicle or by their personal representatives or assigns or by the owner of livestock, there is no presumption or inference that the collision was due to negligence on the part of the owner or the person in possession of the livestock or the driver or owner of the vehicle.


60-7-204 Flagmen escorts -- prohibitions against nighttime herding on public highways.
A person who owns, controls, or possesses livestock may not herd or drive a herd of livestock numbering more than 10 on an interstate or state primary highway designated as such by the transportation commission unless the livestock is preceded and followed by flagmen escorts for the purpose of warning other highway users. Livestock may not be herded or driven on an interstate or state primary highway during nighttime, as that term is defined in 1-1-301, except in a case of emergency. In the case of an emergency during the nighttime, the flagmen escorts shall use adequate warning lights, such as but not limited to portable lamps, lanterns, or rotating beacons. This section does not apply during daytime at posted livestock crossings on highways.


60-7-205 Violations.
A person who violates 60-7-204 is guilty of a misdemeanor.


TITLE 69 PUBLIC UTILITIES AND CARRIERS
CHAPTER 14 RAILROADS
Part 7 Protection of Livestock and Agricultural Resources


69-14-701. Maintenance of fences -- exception -- penalty
(1) Railroad corporations shall build and maintain a legal fence on both sides of their track and property and maintain cattle guards at all crossings over which cattle or other domestic animals cannot pass, except that a fence is not required in places where water ditches, embankments, terrain, or other sufficient protection prevents domestic animals from straying onto the right-of-way. An affected landowner or lessee may construct, maintain, or repair a fence subject to approval and reimbursement by the railroad corporation.

(2) If a railroad corporation does not build and maintain the fence and guards and its engines or cars, because of the lack of a fence or maintenance of a fence, kill or maim cattle or other domestic animals upon its line of road, it must pay to the owner of the cattle or other domestic animals, in all cases, a fair market price for the animal, unless it occurred through the neglect or fault of the owner of the animal killed or maimed; however, nothing in this section may be construed to prevent a person from recovering damages from a railroad corporation for its negligent killing or injury to cattle or other domestic animals at spurs, sidings, Ys, crossings, and turntables.

(3) An affected landowner or lessee may file a complaint with the public service commission when a fence is in disrepair or in need of maintenance. The public service commission shall certify that the fence is in need of repair and notify the railroad corporation responsible for the fence. The public service commission shall forward a copy of the complaint, a certification that the fence is in need of repair, and a verification that the railroad corporation was notified to the county attorney of the county within which the site of the fence in disrepair is located. Upon notice, the railroad corporation responsible for the fence shall repair the fence within 30 days, weather permitting. A railroad corporation failing to repair the fence within 30 days of notification shall pay a fine of $100 plus $50 a day each day after the 30th day of notification, for failure to repair the fence. The fine must be recovered in a civil action and deposited in the county general fund. It is the duty of the county attorney of the county within which the site of the fence in disrepair is located to prosecute the action.


69-14-702. Crossings to be maintained
(1) Any railroad corporation or lessee, person, company, or corporation operating any railroad in this state which may fence its right-of-way shall make crossings through its fence and over its roadbed along its right-of-way every 4 miles thereof or as near thereat as may be practicable.

(2) Such openings shall not be less than 60 feet in width.


69-14-703 Placement of cattle guards.
The railroad company or lessee, person, company, or corporation operating any railroad shall place cattle guards on either side of the openings required by 69-14-702, sufficient to prevent any cattle from entering upon the right-of-way enclosed.


69-14-704 Openings under trestles.
The railroad company, lessee, person, or company operating any railroad, in addition to the openings required by 69-14-702, shall leave unfenced any places where the railroad runs over trestles that are sufficiently high for cattle to go underneath the same.


69-14-705 Application of provisions dealing with crossings.
The provisions of 69-14-702 through 69-14-706 shall only apply to grazing country.


69-14-706 Violation of crossing provisions.
Any railroad corporation or lessee, person, company, or corporation operating any railroad in this state violating the provisions of 69-14-702 through 69-14-705 shall be deemed guilty of a misdemeanor and upon conviction thereof in any court of competent jurisdiction shall be fined in a sum not less than $ 100 and not more than $ 500.


69-14-707. Liability for negligent destruction of domestic animals
Every railroad corporation or company operating any railroad or branch thereof within the limits of this state which shall negligently injure or kill any horse, mare, gelding, filly, jack, jenny, mule, cow, heifer, bull, ox, steer, calf, or other domestic animal by running any engine or car over or against any such animal shall be liable to the owner of such animal for the damages sustained by such owner by reason thereof. The killing or injury shall be prima facie evidence of negligence on the part of such corporation or company.


69-14-708. Records of accidents involving animals
(1) A railroad company must report to the department of livestock any livestock killed or injured by a train or railroad equipment on the railroad right-of-way within 30 days after the killing or injuring of any livestock.

|(2) A railroad company failing to provide the notice provided for in subsection (1) is liable to the owner of the animal killed or injured, whether negligently done or not. The court or jury before whom an action is tried for the recovery of damages may in its discretion render a verdict and judgment for the amount of the value of the livestock killed or the amount of damages sustained by reason of injury.


69-14-709 Allowance of attorney's fee.
(1) Except as provided in subsection (2), whenever any of the livestock referred to in this part shall be injured or killed as therein recited and the owner thereof shall thereafter institute an action for the recovery of the loss or damage so sustained by him, the court in which such action shall be brought shall tax, as a part of the costs therein, a reasonable sum to be fixed by the court as a fee to the attorney of the prevailing or successful party for conducting such action. Said fee so fixed and allowed shall be collected in like manner as other costs.

(2) No such fee shall be allowed by the court or collected from the defendant when it shall appear from the pleadings or proof in any such action that the defendant prior to the institution of such action offered or agreed to pay to the plaintiff therein, in settlement of the loss or damages claimed, a sum equal to or in excess of the amount recovered as damages in said action or unless the plaintiff, at least 40 days prior to the commencement of the action, shall have made demand, in writing, upon the defendant, his agent, or attorney for the sum of money claimed as indemnity for the killing of said livestock.


69-14-710 Tender or deposit of value of animal.
If a corporation, association, company, or person so owning, controlling, or operating a railroad or branch thereof kills or injures an animal as aforesaid and tenders to the owner thereof or to his agent in that behalf the amount which they consider to be the value thereof or the damage thereto, as the case may be or if the railroad, corporation, association, company, or person deposits with the department of livestock such amount for the owner thereof and the owner or his agent refuses to accept the amount in settlement thereof, then the owner shall pay all costs incurred in any action instituted, after the tender or deposit, to recover the value or damage unless he recovers in the action more than the amount so tendered.


69-14-711 Payment of damages to department of livestock.
(1) If livestock are killed by railroad corporations in violation of 69-14-701 and if the owner of the livestock does not claim or assert a claim against the railroad or railroad corporation for the value of the livestock killed within 6 months from the date the animal is killed, the department of livestock shall demand from the railroad or railroad corporation payment in damages for livestock. The department shall institute and prosecute, in the name of the state, actions against the railroad or railroad companies in a court of competent jurisdiction to recover damages if the railroad fails, neglects, or refuses to make payment of the amount of the claim filed by the department.

(2) The money recovered shall be paid to the department and shall be held by the department for a period of 2 years after the date of its receipt. If the lawful owner of the animal killed does not present and prove his claim to the net proceeds received from the animal killed within the 2 years, the money shall be paid to the state treasurer and credited to the stock estray fund. If the owner of the animal killed proves his claim within the 2 years, the department may pay the claimant the amount of money to which he is entitled for the animal killed by the railroad or railroad company, the damages for which have been collected by the department.

(3) In actions prosecuted for the recovery of the value of livestock killed under this section, the prevailing or successful party shall recover all costs. If the owner of an animal killed has not presented his claim against the railroad or railroad company which caused it to be killed, a settlement made by the department constitutes a bar against an action by the owner of the animal.


69-14-713 Violation of provisions dealing with injury to livestock.
(1) Except as otherwise provided, every person who violates any of the provisions of 69-14-701 through 69-14- 711 relating to livestock killed or injured by railroads is guilty of a misdemeanor.

(2) Any person violating any of the provisions of 69-14-711 shall upon conviction thereof be punished by a fine of not less than $ 10 or more than $ 300 or by imprisonment in the county jail for a period of not less than 10 days or more than 60 days or by both.


69-14-714 Payment of claim -- penalty.
Upon determining liability for the amount of the value of an animal killed or maimed under the circumstances described in 69-14-701, the railroad corporation shall pay the plaintiff within 30 days. Upon failure to pay the plaintiff within 30 days, interest at a rate of 10% a year accrues on the amount due until the claim is paid.



TITLE 70 PROPERTY
CHAPTER 16 RIGHTS AND OBLIGATIONS INCIDENTAL TO OWNERSHIP IN REAL PROPERTY
Part 2 Adjoining Landowners and Boundaries -- Fences



70-16-205 Monuments and fences -- mutual obligation of adjoining owners.
(1) Coterminous owners are mutually bound equally to maintain:

(a) the boundaries and monuments between them;

(b) the fences between them, unless one of them chooses to let his land lie without fencing, in which case if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter. However, using land for grazing or pasturage of any kind whatsoever must be considered a usage of the land, and the land must not be considered as lying idle under the provisions of this section.

(2) Except as provided by prescription, custom, or agreement between coterminous owners, each coterminous owner shall maintain all fencing to the right of the midpoint of the common boundary line as viewed from his land. If the land of one owner is entirely surrounded by the land of another, each owner shall maintain all fencing to the right, as viewed from his land, of the northeastern corner of the surrounded land or, if there is more than one northeastern corner, then from the northernmost northeastern corner to a point midway around the surrounded land. If there is a substantial difference in terrain or topographical features of the land between the coterminous owners, responsibility for maintaining the fence must be determined by mutual agreement with consideration given to factors such as cost and time.


70-16-206 Partition fences required -- adjoining lands previously enclosed.
The occupants of adjoining lands enclosed with fences must build and maintain partition fences between their own and the next adjoining enclosure in equal shares so long as both continue to enclose the same, and such partition fence must be kept in good repair throughout the year unless the occupants otherwise mutually agree.


70-16-207 Occupant of land adjoining enclosure of another - - when required to share expense of partition fence.
If any occupant of land adjoining the enclosure of another enclose the same, upon the enclosure of such other person, he must within 3 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 adjoining occupant.


70-16-208 Partition fence when common occupancy ceases.
Whenever any lands belonging to different persons in severalty have been enclosed and occupied in common or without a partition fence between them and one of such occupants desires to occupy his part in severalty, the other occupant must, within 6 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 neglect 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 action, together with all damages he may sustain on account of such neglect or refusal.


70-16-209 Repair or rebuilding of partition fences.
In case any person neglects or refuses to repair or rebuild any partition fence which by law he ought to build or maintain, the occupant of the adjoining land may, after giving 60 days' notice that a new fence should be erected or 5 days' notice in writing that the repairing of such fence is necessary, build or repair such fence at the expense of the party so neglecting or refusing, the amount so expended to be recovered from him; and the party so neglecting or refusing, after receipt by him of the notice above provided, is liable to the party injured for all damages he may sustain thereby.


70-16-210. Removal of partition fence
If the occupants of adjoining lands build their respective portions of a partition fence and either of them at any time desires to suffer the land occupied by him to lie open, he may, after having given to the occupants of the adjoining land at least 6 months' notice of his intention so to do, remove his proportion of the partition fence unless such adjoining occupant pays or tenders to him the value thereof. If such fence be removed without notice or after payment or tender of the value as aforesaid, the person removing the same is liable to the person injured for all damages he may sustain thereby.


TITLE 76 LAND RESOURCES AND USE
CHAPTER 16 GRAZING DISTRICTS
Part 3 Organization, Administration, and Operation



76-16-311. Control of trespassing livestock
(1) The state district or its duly authorized agent controlling the land upon which such wrongful entry is made by trespassing livestock may take into its possession such livestock and shall reasonably care for same while in its possession and may retain possession of said livestock and have a lien and claim thereon as security for payment of such damages and reasonable charges for the care of said livestock while in its possession.

(2) The state district taking up such livestock shall, within 72 hours after taking possession thereof, notify said owner, owners, or person in charge thereof by a notice in writing describing said livestock by number of animals and brands thereon, if any, the amount of damages claimed to date, and the charge per animal unit per day for caring for and feeding the same thereafter, such charges not to exceed $2 per animal unit per day, and describing by general description the location of the premises upon which said livestock is held and requiring such owner or owners, within 10 days after receiving said notice, to take said livestock away after making full payment of all damages and costs of said livestock.

(3) In case the parties do not agree as to the amount of damages, the state district taking up such livestock may at the expense of the owner retain a sufficient amount of such livestock to cover the amount of damages claimed by the state district. However, the owner may, upon furnishing a good and sufficient bond, conditioned for the payment to the state district of all sums, including costs that may be recovered by said state district in a civil action to foreclose its lien, have returned to him all livestock held as aforesaid, and said state district shall be liable to such owner for any loss or injury to said livestock accruing through the state district's lack of reasonable care.

(4) If the state district taking up livestock shall fail to recover in a civil action a sum equal to that offered to the state district by the owner of the livestock, the former shall bear the expense of keeping and feeding same while in its possession. Such notice may be given by personal service on the said owner, owners, or person in charge thereof, by leaving said notice at his usual place of residence with some member of his family over the age of 14 years, or by sending said notice by prepaid registered or certified mail, addressed to his last known place of residence. Said service by registered or certified mail shall be deemed complete upon the deposit of said notice in the post office.


76-16-312. Impoundment of trespassing livestock
The state district or the party taking up such trespassing livestock may cause same to be impounded at any suitable place within the state district or within 5 miles from the exterior boundaries thereof, and such livestock shall be deemed legally impounded if placed in a corral or upon land enclosed by a legal fence or placed in charge of a herder or herders.


TITLE 81 LIVESTOCK
CHAPTER 4 CONTAINMENT OF LIVESTOCK
Part 1 Fences


81-4-101. Legal fences defined
Any one of the following, if not less than 44 inches or more than 48 inches in height, shall be a legal fence in the state of Montana:

(1) all fences constructed of at least three barbed, horizontal, well-stretched wires, the lowest of which must not be less than 15 inches or more than 18 inches from the ground, securely fastened as nearly equidistant as possible to substantial posts firmly set in the ground or to well- supported leaning posts not exceeding 20 feet apart or 33 feet apart where two or more stays or pickets are used equidistant between posts. All corral fences which are used exclusively for the purposes of enclosing stacks which are situated outside of any lawful enclosure shall not be less than 16 feet from such stack so enclosed and shall be substantially built with posts not more than 8 feet distant from each other and not less than five strands of well- stretched barbed wire and shall not be less than 5 or more than 6 feet high. Any kind of a fence equally as effectual for the purpose of a corral fence may be made in lieu thereof.

(2) all fences constructed of any standard woven wire not less than 28 inches in height, securely fastened to substantial posts not more than 30 feet apart, provided that two equidistant barbed wires shall be placed above the same at a height of not less than 48 inches from the ground;

(3) all other fences made of barbed wire, which shall be as strong and as well calculated to protect enclosures as those above described;

(4) all fences consisting of four boards, rails, or poles with standing or leaning posts not over 17 feet and 6 inches apart, provided that, if leaning posts are used, there shall be a pole or wire fastened securely on the inside of the leg or support of such leaning post;

(5) all rivers, hedges, mountain ridges and bluffs, or other barriers over or through which it is impossible for stock to pass.


81-4-102. Construction of auto pass not to deprive legal fence of character
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 character of a legal fence under the laws of this state.


81-4-103. Civil liability
Any person constructing or maintaining any fence of any kind not described in 81-4-101 is liable in a civil action for all damages caused by reason of injury to stock resulting from such defective fence.


81-4-104. Barbed wire fences to be kept in repair
The owners of barbed wire fences must keep the same in repair, and any person receiving notice in writing that his barbed wire fence or any part thereof is down or in such condition as to be likely to injure any livestock and fails or refuses to repair such fence is liable to pay damages in an amount equal to the value of any cattle, horses, mules, or other domestic animals which may be injured by coming into contact with the fence.


81-4-105. Fallen wire fencing declared nuisance -- abatement
All barbed wire and other wire fencing which has sagged or fallen to the ground so as to be ineffectual for the purpose of turning stock and a menace to any person riding or walking over the same is declared to be a public nuisance and subject to abatement in the manner hereinafter provided.


81-4-106. Notice to owner to repair fence -- duty of county commissioners
Upon ascertaining the existence in the county of any nuisance specified in 81-4-105, the board of county commissioners shall notify by registered or certified mail the owner of such wire, if such owner be known to said board and within the state, to remove same. If such owner shall fail to remove said wire or to rebuild said fence within 60 days following receipt of said notice, the board of county commissioners shall have authority to remove and dispose of said wire in the manner provided by 81-4-107.


81-4-107 Procedure when owner unknown or not resident of state -- sale of wire removed.
If there is no known owner of such wire within the state or if such owner is unknown to the board of county commissioners, the board may collect and remove the wire at the expense of the county. All such wire or other fencing as in the opinion of the board of county commissioners can be sold at a price sufficient to cover at least the expense of removal and sale shall be sold by the county commissioners in the manner provided by law for the sale of county property, except that notice of such sale need be published only once and need be given only 10 days before such sale.


81-4-108 Disposal of proceeds of sale of wire after payment of expense.
The proceeds of such sale shall be used to defray the cost of collecting and selling said wire, and the balance, if any, shall be placed by the county treasurer in a special fund and shall be held by him subject to claim by any person establishing to the satisfaction of the board of county commissioners that he was the lawful owner of said wire and entitled to the remaining proceeds of such sale. If no person claims said money within 1 year of the date of sale, the same shall be deposited in the general fund of the county.


TITLE 81 LIVESTOCK
CHAPTER 4 CONTAINMENT OF LIVESTOCK
Part 2 Animals Unlawfully Running at Large



81-4-201 Animals running at large.
It is unlawful for an owner or person in control of swine, sheep, llamas, alpacas, bison, ostriches, rheas, emus, or goats to willfully permit the animals to run at large.


81-4-202 Penalties.
(1) Any person violating 81-4-201 is guilty of a misdemeanor and upon conviction shall be fined not more than $ 500 and is liable for damages to any party injured by the violation, in any court having competent jurisdiction.

(2) All fines collected under the provisions of this section, except those collected in a justice's court, must be paid into the county treasury for the use and benefit of the public schools.


81-4-203. Open range defined
In 81-4-204, 81-4-207, and 81-4-208, the term "open range" means all lands in the state of Montana not enclosed by a fence of not less than two wires in good repair. The term "open range" includes all highways outside of private enclosures and used by the public whether or not the same have been formally dedicated to the public.


81-4-204 Male equine animals not to run on open range.
It shall be unlawful for any owner, person, firm, corporation, or association having the management or control of any stallion, ridgeling, unaltered male mule, or jackass over the age of 1 year to permit or suffer such animal to run at large on the open range.


81-4-205 Male equine animals running at large as nuisance - - abatement.
Any such animal so running at large is a public nuisance, which, in addition to the means and proceedings prescribed by this part for its abatement and removal, may be abated and removed by the means and proceedings provided by law for the abatement or removal of public nuisances.


81-4-206 Killing animal to prevent injury not prohibited.
Sections 81-4-203 through 81-4-209 are not intended and shall not be interpreted or understood to limit or deny the right now existing to destroy or kill any such animal to prevent injury by it to any person or property.


81-4-207 Castration of animals running at large -- notice to owner -- expense and charges.
(1) Any person may take up and secure any such animal found running at large on the open range. After taking it up he shall, without unnecessary delay, post at the United States post office or as near as may be to the place where the animal was taken up a notice truly dated and subscribed by him or his agent to the effect that the animal, describing it by marks and brands (if any), color, and sex, was taken up on the day named while it was running at large on the open range in the county (naming the county) and that, unless claimed and removed within 5 days next after the date of the posting, the animal will be castrated at the expense of the owner thereof. Should the owner, person, firm, corporation, or association having management or control of such animal be known to the person who took the animal up, personal service of such notice upon the owner, person, firm, corporation, or association having management or control of the animal shall be the equivalent to the posting. The notice, if personally served, may state that, unless the animal is claimed and removed within 2 days next after the date of the notice served personally, the animal will be castrated at the expense of the owner thereof.

(2) If such animal so taken up be not claimed and removed within said 5 days or said 2 days, as the case may be, it may lawfully be castrated in the usual manner and doing no more harm than is necessary. The expense of castration shall be paid by the owner. If such animal be claimed within the time herein prescribed, the claimant shall pay to the person who took the animal up the reasonable expense of the keeping and feed thereof since it was taken up and also the sum of $ 5 for the taking up and giving of the notice aforementioned. Upon making such payments the claimant shall immediately remove and take away said animal.


81-4-208 Killing of animal running at large -- notice -- posting and service.
(1) If any such animal so running at large cannot, by reasonable effort, be captured, taken up, or corralled, it may lawfully be killed unless the owner or person having the management or control of it shall take the animal off the open range and restrain it from running at large thereon within 10 days next after the giving of notice as hereinafter provided. The notice shall be signed by one or more taxpayers of the vicinity of the range whereon such animal be at large and be substantially as follows:

"To whom it may concern:

Take notice, that a certain (stallion, ridgeling, unaltered male mule, or jackass, as the case may be) is running at large on the open range (identify the range by general description) in .... County, Montana. Unless said animal be removed therefrom and restrained from running at large on open range, within 10 days next after the date of this notice, it will be killed.

(Date) (Signature or signatures)"

(2) The notice shall be posted at the post office nearest the place where the animal was last seen on the range and like notices in two other of the most public places in the vicinity of said range, and like notice shall at once be mailed to the owner or person having management or control of the animal, if his name and address be known.


81-4-209 Penalty for violations.
An owner, person, firm, corporation, or association violating any provisions of 81-4-203 through 81-4-209 shall be guilty of a misdemeanor punishable as provided in 46-18- 212.


81-4-214 Branding animals running at large -- running irons prohibited.
Every person except an owner, and the owner only when branding on the owner's own premises and in the presence of two responsible citizens, who marks or brands any calf or cattle that are running at large between December 1 and May 10 of the next ensuing year and every person who shall at any time brand or cause to be branded or marked any horse, mule, cattle or head of cattle, sheep, llama, alpaca, bison, swine, or other animal, 1 year old or older, with any piece of metal or implement, other than a branding iron, which branding iron must be of the same design as the brand or mark owned by the party using it, or who marks or brands or causes to be marked or branded any of the animals listed in this section with any piece or pieces of iron called "running irons", such as bars, rings, half or quarter circles, is punishable by imprisonment in the county jail for not exceeding 6 months or by a fine of not less than $ 25 or more than $ 500, or both.


81-4-215. Liability of owners of stock for trespass
If any cattle, horses, mules, asses, hogs, sheep, llamas, alpacas, bison, or other domestic animals break into any enclosure and the fence of the enclosure is legal, as provided in 81-4-101, the owner of the animals is liable for all damages to the owner or occupant of the enclosure. This section may not be construed to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law.


81-4-217 Retention of trespassing stock.
(1) If an animal breaks into an enclosure surrounded by a legal fence or is wrongfully on the premises of another, the owner or occupant of the enclosure or premises may take into possession the trespassing animal and keep the animal until all damages, together with reasonable charges for keeping and feeding the animal, are paid. The person who takes the animal into possession shall, within 24 hours after taking possession, give written notice to the owner or person in charge of the animal, stating that the animal has been taken. The notice must also give the date of the taking, the description of the animal taken, including marks and brands, if any, the amount of damages claimed, the charge per head per day for caring for and feeding the animal, and the description, either by legal subdivisions or other general description, of the location of the premises on which the animal is held.

(2) The notice must be given to the owner or person in charge only when the owner or person in charge of the animal is known to the person taking the animal and resides within 25 miles of the premises on which the animal was taken. If the owner or person in charge of the animal resides more than 25 miles from the place of the taking, the notice must be mailed to the owner. In this case or if the owner is unknown, a similar notice must be mailed to the department of livestock and the sheriff of the county in which the animal has been taken. On receipt of the notice, the sheriff shall post a copy of the notice at the courthouse and shall send by certified mail a copy of it to the owner of the stock, if known to the sheriff. If unknown, the sheriff shall send a copy of the notice to the nearest state livestock inspector.

(3) If the parties within 5 days after receipt of the notice do not agree to the amount of damages, the claimant shall within 10 days institute a civil action to collect the claim in a court of competent jurisdiction. Pending the outcome of the suit, the person taking the stock may, at the expense of the owner, retain a sufficient number of animals to cover the amount of damages claimed by the person taking the stock. The owner or person in charge of the animal may, after the institution of the action, on filing a bond executed by two or more sureties and approved by the court in double the sum sued for, conditioned upon the payment to the claimant of all sums, including costs that may be recovered by the claimant, have all livestock returned. The claimant is liable to the owner for any loss or injury to the stock occurring through the claimant's fault or neglect. If the claimant fails to recover in the action a sum equal to that offered by the owner of the stock, the claimant bears the expense of keeping and feeding the stock while in the claimant's possession.

(4) A person who takes or rescues an animal from the possession of the person taking the animal, without the consent of the person taking the animal, is guilty of a misdemeanor punishable as provided in 46-18-212.


TITLE 81 LIVESTOCK
CHAPTER 4 CONTAINMENT OF LIVESTOCK
Part 5 Roundup of Abandoned Horses


81-4-501. Definitions
Unless the context requires otherwise, in this part the following definitions apply:

(1) "Abandoned horse" means a horse, mare, gelding, filly, jack, mule, or other animal of the genus equus, 1 year of age or over and unbranded or, if branded, which has escaped assessment for taxation for the year immediately preceding its impounding as provided for in this part, and running at large on the open range of this state, including foals running with dams coming within the above definition. An animal not bearing a decipherable brand which is recorded with the department of livestock is considered unbranded.

(2) "Open range" means all lands in this state not enclosed by a fence. The term "open range" includes all highways outside of private enclosures and used by the public, whether the highways have been formally dedicated to the public or not.

(3) "Person" includes individuals, associations, persons, and corporations.


81-4-502 Abandoned horses on public range declared public nuisance subject to condemnation -- right of owner.
It is unlawful for any person owning or having control of any horse to abandon the horse upon the open range in the state of Montana, and such horses so running at large upon the open range in the state are a public nuisance and a public menace and are condemned, subject to the right of the owner of any such abandoned horse to reclaim the same under the conditions hereinafter provided.


81-4-503 Roundup of abandoned horses -- petition -- expenses.
(1) For the purpose of speedily clearing abandoned horses from the open range in any county or in any district thereof, the board of county commissioners of any such county must, upon the petition of at least five responsible property owners, inhabitants of the proposed roundup district engaged in the livestock business and paying taxes upon livestock in such county, or upon the petition of a reputable local livestock association, authorize a roundup of abandoned horses in any district within such county.

(2) Upon the filing of such petition, the board shall make an order authorizing such roundup, which order shall describe generally such district with reasonable certainty. Said district shall not include more or less territory than that described in the petition. Such order shall also specify the date on or within 10 days after which the roundup shall begin and shall designate the place within the district at which the headquarters of such roundup shall be maintained.

(3) Any such roundup shall be conducted in such manner as to cause as little disturbance as reasonably possible to horses running lawfully on the open range.

(4) All expense of any such roundup shall be paid by the petitioners at whose request the same is initiated, and no county officer or board shall have any power to expend any moneys of the county or incur any obligation on its behalf in connection with any such roundup. Such petitioners, however, shall be reimbursed for the expense of such roundup, as and when moneys may be available for that purpose in the abandoned horse fund, by warrants issued upon claims filed as in the case of other claims against the county.


81-4-504 Notice of holding roundup -- publication -- form.
Notice of the roundup shall be given by the board of county commissioners at least 30 days before the date when the roundup begins. The notices shall be published at least once a week for 3 successive weeks in some newspaper of general circulation, printed and published in the county in which the roundup is to be held, if a newspaper of this type is printed and published in the county. The notice shall be posted in at least five public places outside of the county seat of the county on public highways in the county or district, as the case may be, in which the roundup is to be held. Three notices shall be posted in three public places in the county seat. One of the notices shall be posted at the front door of the courthouse. The notices posted outside of the county seat are to be posted not less than 2 miles apart, and all posted notices are to be posted at least 20 days before the date on which the roundup begins as stated in the notice. If no newspaper is printed and published in the county, publication in a newspaper is not required. At least 20 days before the date on which the roundup is to begin, a copy of the notice shall be filed with the department by the clerk of the board of county commissioners.


81-4-505 Roundup foreman -- duties -- bond.
(1) All roundups shall be under the control and supervision of the board of county commissioners of the county in which the same shall be held. Roundup districts shall be numbered in the order of their creation. Each roundup shall be conducted by some person designated by the board of county commissioners, whose official designation shall be "roundup foreman, .... roundup district, .... County, state of Montana".

(2) Such person shall maintain his headquarters at the place designated by the board of county commissioners in its order as the headquarters of such roundup. Such roundup foreman shall have power to administer oaths and affirmations in all matters coming within the scope of his official duties.

(3) The board of county commissioners shall require from such roundup foreman an official bond, in an amount not less than $ 2,500 and not to exceed $ 5,000, which bond shall be conditioned as official bonds of county officers and shall be subject to all provisions of law applicable to such bonds.


81-4-506 Sale of abandoned horses.
All abandoned horses taken up in any such roundup shall be delivered to the roundup foreman in charge of such roundup and shall be by him offered for sale at public auction and sold to the highest bidder for cash, if there be any bidder or bidders therefor, and any such abandoned horses so offered for sale and for which no bid is made shall be destroyed or otherwise disposed of in the discretion of the board of county commissioners, unless reclaimed as herein provided.


81-4-507 Gathering horses in roundup district before roundup unlawful -- rights of owner.
It shall be unlawful for any person or persons to round up from the range any horse or horses in any roundup district after such districts have been designated by the county commissioners until after such roundup. However, an owner of horses on which the taxes have been paid in this district may gather the same by notifying the roundup foreman and being accompanied by such foreman or a representative of such foreman in gathering such horses.


81-4-508 Claim of owner -- cost of keeping and feeding horses.
Any person claiming to be the owner of any such abandoned horse or horses may serve written notice upon the roundup foreman in charge of such roundup of his claim of ownership, at any time before sale or other final disposition of such horse or horses. Such claim of ownership shall be verified by the oath of the claimant or someone on his behalf, and the sale or other final disposition of such horse or horses shall, as to such horse or horses, be postponed from time to time as may be necessary to enable the claimant to make proof of his claim as herein provided. Such postponement shall not be had unless the claimant shall pay to the roundup foreman in charge of such roundup or deliver to him satisfactory security for the estimated cost of keeping and feeding such horse or horses until sale or other final disposition or delivery to the owner.


81-4-509 Proof of ownership -- payment of taxes and penalties -- decision of commissioners on claim.
Any person claiming any abandoned horse or horses as provided in 81-4-508 shall, within 5 days after serving the notice provided for in 81-4-508, or within such further time as the board of county commissioners shall allow, upon good cause shown, submit to such board proof of his ownership and shall deposit with said board the amount of any unpaid taxes and penalties which may be assessed against such horse or horses, together with the sum of $ 5 roundup fee. The board shall decide all such cases in preference to all other matters coming before it and at the earliest possible moment. If the claim shall be allowed, the roundup foreman in charge of such roundup shall immediately be notified of such decision and he shall forthwith deliver such horse or horses as to which ownership shall be so proved to the owner upon payment of any amount due from such owner for the estimated cost of keeping and feeding such horse or horses as aforesaid. The deposit made by such owner of taxes, penalties, and roundup fee shall be delivered by the board to the county treasurer. If such board shall deny the claim of ownership, it shall forthwith notify the person in charge of such roundup of its decision and such horse or horses as to which such claim shall be denied shall be offered for sale at the earliest convenient session of the sales being held under such roundup, and if not sold, the same shall be destroyed or otherwise disposed of as though no claim had been presented.


81-4-510 Notice of sale of abandoned horses -- form -- time of sale -- title.
(1) Before a sale may be had, at least 10 days' notice shall be given by publication and posting in the manner specified in 81-4-504, except that publication, if made in a newspaper, shall be once in each week for two successive weeks, and posting shall be done at least 5 days before the date of sale. Such notice shall be in substantially the following form: NOTICE OF SALE OF ABANDONED HORSES

Notice is hereby given that on .... day, the .... day of ...., 19.., at .... in the county of ...., state of Montana, beginning at the hours of ....m., on said day the following described abandoned horses will be sold at public auction to the highest bidder for cash, to wit:

(Give general description of horses to be sold by brand, if any, color, approximate weight, and estimated age.)

Any horses not reclaimed before sale as provided by law and for which no bid is made at said sale will be destroyed or otherwise disposed of in the discretion of the board of county commissioners of .... County, state of Montana.

Dated the .... day of ...., 20...

By order of the board of county commissioners of .... County, Montana.

By ...., clerk of said board.

(2) All such sales shall be held between the hours of 8 a.m. and 6 p.m. and may be continued from time to time until all abandoned horses taken in such roundup shall have been disposed of. On payment of the price bid for any such horse or horses sold, the delivery thereof, with a bill of sale, vests the title thereto in the purchaser.


81-4-511 Assessment of horses taken in roundup.
Following a roundup held pursuant to this part, the department of revenue shall immediately assess all horses that have been taken up in a roundup and that may be sold or reclaimed before sale and not already assessed for the current year. The department of revenue shall transmit to the county treasurer a copy of each assessment made. Any horses that have escaped the assessment mentioned in 81-4- 501 must be assessed as provided for in 15-8-306.


81-4-512 Disposition of proceeds -- abandoned horse fund -- use of fund.
All moneys paid by reclaiming owners of any such horse or horses shall be paid to the county treasurer and by him kept in a fund to be designated as the "abandoned horse fund, roundup district No. .... (giving number of district in which such horse or horses were rounded up)". A separate fund, styled as above specified, shall be kept by the county treasurer for each roundup district created in his county. All moneys received from the sale of any such horses shall be paid to the county treasurer, and if such sum received from the sale of any such horse shall not exceed the taxes, penalties, and the roundup fee, the whole thereof shall be immediately deposited in the abandoned horse fund for the district in which such horse or horses were rounded up. But if the sum received from the sale of any such horse shall exceed such taxes, penalties, and roundup fee, the amount of such taxes, penalties, and roundup fee shall be forthwith deposited in the abandoned horse fund for such district and the excess shall be kept by the treasurer in a separate fund, and he shall make a record of the description of such horse, the amount received for the same, and the amount of deductions for taxes, penalties, and roundup fee, which record shall be open to public inspection. Any person making claim to the board of county commissioners, at any time within 6 months from the date of sale, of ownership of such horse and submitting proof of ownership to such board with such claim, to the satisfaction of such board, shall be entitled to receive such excess received from the sale of such horse. Any money received from the sale of any such horse in excess of taxes, penalties, and roundup fee, which shall not be so claimed within 6 months after such sale, shall at the expiration of said period become the property of such county and shall be transferred to the abandoned horse fund for the district in which any such horse was rounded up.


81-4-513 Report of roundup foreman -- disposition of copies.
The roundup foreman in charge of the roundup shall keep an accurate record of all proceedings under the order for the roundup. Within 30 days after the roundup is completed, the foreman shall prepare in triplicate and verify by oath a full, true, and accurate report of all the proceedings under the order for the roundup. The report must include a complete financial statement, the number and description of horses impounded, and the manner of disposition of the horses. One copy of the report must be filed with the clerk of the board of county commissioners, and the filing is notice of the contents of the report and prima facie proof of the facts stated in the report. One copy of the report must be filed with the department of revenue, and one copy must be filed with the county treasurer, for their information and appropriate action.


81-4-514 Transfer of moneys of abandoned horse fund to general fund.
On November 30 of each year, the county treasurer shall, if all claims against any such abandoned horse fund are paid and a balance remains in such fund, transfer all moneys so remaining in such fund to the general fund of the county, subject to the usual division with the state as to any portion of such balance which shall consist of taxes collected on the abandoned horses. No part of the roundup fee of $ 5 shall be paid to the state. Any portion of the taxes so collected which shall be used in paying claims against said fund is hereby declared to be a part of the cost of collection of such taxes.


81-4-515 Liability of officers and employees.
No officer, board, or employee of any county or any employee of any such officer or board shall be liable for any act performed in good faith in discharging official duties under this part. All such acts shall be presumed to have been in good faith and in conformity with this part.


81-4-516 Limitation of powers or duties of officers.
Except as provided in this part, this part may not be construed as limiting the powers or duties of the department of revenue, county treasurers, or other boards or officers.


TITLE 81 LIVESTOCK
CHAPTER 4 CONTAINMENT OF LIVESTOCK
PART 6 ESTRAYS


81-4-601 Estray defined.
In this part, "estray" means a horse, mule, mare, gelding, colt, llama, alpaca, bison, cow, ox, bull, stag, steer, heifer, calf, sheep, or lamb:

(1) not bearing a brand and the ownership of which cannot be determined by the stock inspector of the district in which the animal is found by inquiry among reputable resident stock owners or freeholders;

(2) bearing a recorded brand, the owner of which brand cannot be located at or through the post office designated on the records of the department or which owner cannot be located by the stock inspector of the district where the estray is found by inquiry among reputable resident stock owners or freeholders; or

(3) which bears an unrecorded brand, the owner of which unrecorded brand cannot be ascertained by the stock inspector of the district in which the animal is found by inquiry among reputable resident stock owners or freeholders.


81-4-602 Estrays -- department authorized to take possession.
The department and its appointed stock inspectors may take possession of estrays found running at large in this state and may dispose of the estrays, subject to the following restrictions.


81-4-603 Taking up and disposition of estrays -- advertisement.
(1) A stock inspector authorized by the department shall take into his possession an estray found in his district and shall either ship or arrange for the shipment of the estray to a licensed livestock market for sale, or he may hold the estray in his possession and care for the estray in the cheapest and most practicable manner for a period of not less than 30 days or more than 60 days, during which time he shall advertise that he holds the estray and that, unless claimed by the owner, he will on a date to be specified in the notice sell the estray at a public auction to the highest bidder for cash.

(2) The notice shall be published in the newspaper doing the county printing of the county in which the estray is found and in addition to that paper in a paper published in the town or city nearest the place in which the estray is held. This notice shall be published at least once a week for 4 consecutive weeks and shall contain a statement of the date of the sale, the place where the sale is to be held, and a general description of the estray, including the sex and the approximate age, together with an illustration of the brand and the position of the brand on the estray and a description of the place or locality where the estray was found or taken.

(3) The proceeds from the sale shall be disposed of under 81-4-605 and 81-4-606.

(4) The owner of the estray may appear and claim it at any time before the sale or shipment, as provided in this part, upon payment to the department of the cost of caring for the estray as determined by the department.


81-4-604 Sale at public auction -- branding.
On the date specified in the notice provided for in 81-4- 603, the stock inspector shall sell the estray at a public auction to the highest bidder for cash. Before removal from the sale, the stock inspector shall brand the estray with the recorded estray brand of the department.


81-4-605 Expenses, how paid -- disposition of proceeds of sale.
(1) Expenses for collecting, holding, advertising, and selling of the estray, including but not limited to labor, feed, supplies, and veterinary services, shall be paid out of the gross proceeds of the sale of the estray, and the balance of the proceeds of the sale shall be forwarded to the department to be advertised as estray funds in the manner provided by law. The proceeds are subject to claim by the owner of the animal for a period of 2 years from the date of the sale. If the owner of the estray claims the animal before the sale of the animal, the expense incurred by the stock inspector to that time shall be paid by the owner.

(2) The department may adopt rules and establish fees for the handling of estrays.


81-4-606 Publication of description of estrays sold -- disposition of proceeds remaining in state treasury.
A full description of estrays for which the proceeds derived from the sale remains in the hands of the treasurer unclaimed shall be published for the period of two consecutive weekly, semimonthly, or monthly issues after May 1 of each year in not more than four weekly, semimonthly, or monthly publications in this state. The publications shall be designated by the department, and when the publication has been made and the proceeds from the sale of the estrays has remained in the hands of the state treasurer for a period of 2 years, it shall be, by the treasurer, upon request of the department, immediately placed to the credit of the state special revenue fund for the use of the department.


81-4-621 Penalties.
A person who, for that person's own use or benefit and without the owner's consent, takes into possession any estray shall be guilty of a misdemeanor punishable as provided in 46-18-212.


TITLE 81 LIVESTOCK
CHAPTER 5 UNLAWFUL TRANSPORTING OR DRIVING OF LIVESTOCK
PART 1 UNLAWFUL DRIVING OF ANIMALS


81-5-101 Moving livestock from customary range forbidden.
(1) A person who willfully moves or causes to be moved any cattle, horses, mules, swine, llamas, alpacas, bison, or sheep from their owner's customary range without the permission of the owner shall upon conviction be punished by imprisonment in the county jail not exceeding 6 months or by a fine not exceeding $ 500, or both.

(2) A person who negligently moves or causes to be moved any cattle, horses, mules, swine, llamas, alpacas, bison, or sheep from their owner's customary range without the permission of the owner shall upon conviction be punished by:

(a) a term of imprisonment in the county jail not to exceed 6 months;

(b) a fine not exceeding:

(i) $ 25 for a first offense;

(ii) $ 250 for a second offense; and

(iii) $ 500 for a third or subsequent offense; or

(c) both imprisonment and the appropriate fine.

(3) Prior to the imposition of the penalty provided for in subsection (1) or (2), the owner of the livestock shall file a complaint with the department. The department shall conduct an investigation to determine the circumstances under which the livestock were moved.

 

Amended in 1995, 1997, 1999.
Reviewed by AAHS in December 2001.


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