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Law School Case Brief

Herrin v. Sutherland - 74 Mont. 587, 241 P. 328 (1925)


Whenever land is enclosed, a person who hunts or fishes thereon without the consent of the person entitled to the possession thereof is a trespasser. The exclusive right of hunting or fishing on land owned by a private individual is in the owner of the land, or in those who have a right to be there by his permission, as his guests, or by his grant. The fact that all have the right to hunt and take such game as is allowed by statute upon the public domain does not warrant one in entering upon privately enclosed lands for that purpose. Since every person has the right of exclusive dominion as to the lawful use of the soil owned by him, no man can hunt or sport upon another's land but by consent of the owner. It will be conceded that the owner of lands in Montana has the exclusive right of hunting and sporting upon his own soil. Whatever may be the view entertained when the land belongs to the United States or to the state, there can be no question when the land passes to the hands of private owners.


A landowner filed eight causes of action against a trespasser in the District Court of Lewis and Clark County (Montana) and alleged damage to his property as a result of the trespasser's wrongful actions. The landowner alleged his ownership and actual possession of what he terms his "home ranch," which ranch is devoted to the raising of hay and grain and the breeding and raising of sheep and cattle. The trial court entered a judgment in the landowner's favor in the amount of one dollar and the trespasser appealed.


Was the landowner entitled to damages?




The court affirmed the trial court's judgment entered in favor of the landowner in his action for damages against the trespasser. The court held that: (1) The landowner maintained his first cause of action because the trespasser went upon the landowner's land; (2) The trespasser trespassed also when he waded up and down a non-navigable stream fishing; (3) When the trespasser, although standing upon the land of another, fired a shotgun over the landowner's premises, dwelling, and cattle, he interfered with the quiet, undisturbed, peaceful enjoyment of the landowner and thus committed a technical trespass at least; (4) The landowner had a right to recover damages from those who trespass; (5) When the landowner posted his notice warning persons that hunting or trespassing was prohibited, and they did hunt or trespass, they were subject to criminal prosecution; (6) The landowner's sixth cause of action was sustained by the allegation that the trespasser broke the fence and entered upon the landowner's ranch; (7) The trespasser did not have any right to enter upon the landowner's lands or to take fish from his pond or streams; and (8) The trespasser had no right to kill or capture wild ducks upon the landowner's land.


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