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 [88]*88defendant’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 [89]*89animal 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 [90]*90those 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.
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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 [88]*88defendant’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 [89]*89animal 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 [90]*90those 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 [91]*91by 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 [92]*92concomitant 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 [93]*93actionable 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.