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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 from 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: "Everyone is responsible. . . . for an injury occasioned to another by his want of ordinary care or skill in the 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 by the defendant constituting negligence in the management of his property. But the plaintiff contends that, irrespective of section 2296, the defendant has been guilty of negligence in so 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 land owner owes the duty to refrain from any willful or wanton act causing injury to his person or chattels, and, after discovering that the trespasser is in imminent danger or immediate peril, to use reasonable care to avoid an active cause of injury: Egan v. Montana Cent. Ry. Co., 24 Mont. 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 land owner 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 etc. R. R. Co., 10 Allen, 368, 87 Am. Dec. 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 encumbered, or 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. He goes there at his own risk, and enjoys the license subject to its 92 concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter, or induced to come 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 owner 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 was in accordance with the intention and design with which the way or place was adapted and prepared or allowed 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 actionable wrong, is not the exercise of a legal right; and as the cattle owner possessed no right to have his livestock 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 to 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. Winona etc. R. R. Co., 39 Minn. 164, 12 Am. St. Rep. 626, 39 N. W. 402. 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.

Brantly, J., concurred.

MILBURN, J. 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 livestock which wander upon such premises.

If a Property Owner digs a pit or well near the highway, leaving it uncovered and uninclosed, he is liable for the death of a domestic animal which, while lawfully running at large, falls into the exca

vation and is killed: Haughey v. Hart, 62 Iowa, 96, 49 Am. Rep. 138, 17 N. W. 189; Jones v. Nichols, 46 Ark. 207, 55 Am. Rep. 575. In the last case, grain was scattered about the place of danger: See, in this connection, Sisk v. Crump, 112 Ind. 504, 2 Am. St. Rep. 213, 14 N. E. 381; Ray v. Stuckey, 113 Wis. 77, 90 Am. St. Rep. 844, 88 N. W. 900. As to the liability of the owner of dangerous premises to trespassing persons, see Ryan v. Towar, 128 Mich. 463, 87 N. W. 644, 92 Am. St. Rep. 481, and cases cited in the cross-reference note thereto.

STATE V. NORTHERN PACIFIC EXPRESS COMPANY. [27 Mont. 419, 71 Pac. 404.]

INTERSTATE COMMERCE—Occupation Tax.—A statute imposing an occupation tax on any carrier engaged in transmitting goods "from one place to another," and not making any discrimination between local and interstate business, is void as against an express company engaged in interstate and intrastate business as an unlawful interference with, and attempt to regulate interstate commerce. (p. 830.)

J. Donovan, attorney general, for the state.

W. Wallace, Jr., for the respondent.

420 HOLLOWAY, J. The parties to this action, proceeding under the provisions of section 2050 of the Code of Civil Procedure, agreed upon a case containing the facts upon which the controversy depends, and submitted the same to the district court for determination.

The county treasurer of Lewis and Clarke county, in the name of the state, sought to collect a license or occupation tax from the defendant, Northern Pacific Express Company. The facts agreed upon, so far as they are material to a determination of the question in dispute, are that the defendant, Northern Pacific Express Company, is a foreign corporation engaged in carrying express matter for hire from points in this state to other points in this state, and also from points in this state to points without this state; that it maintains an office in Helena, and has paid its taxes upon all its property in the state; and that neither the defendant company, nor its agent, has ever applied for or obtained a license to conduct such business.

The question submitted to the district court for decision was: "Is the defendant company liable for a license fee or an occupation tax under the laws of the state of Montana ?" This question 421 the district court answered in the negative and en

tered a judgment for the defendant for costs, from which judgment the state prosecuted this appeal.

Section 4074 of the Political Code, which provides for licenses for express companies, is as follows: "Every person, association or corporation who engages as a common carrier in transmitting or conveying gold-dust, gold and silver coin or bullion, money or bank notes, packages or express matter, or passengers from one place to another for hire or profit must procure a license and pay therefor in each county where the business is transacted as follows: Those doing business to the amount of fifty thousand dollars or over per quarter, must pay one hundred and eighty-seven dollars and fifty cents per quarter. This section shall not apply to street railway companies. Those doing business in any county to the amount of thirty thousand dollars and under forty thousand dollars per quarter, must pay ninety-three dollars and seventy-five cents per quarter. Those doing business in any county to the amount of twenty thousand dollars, and under thirty thousand dollars per quarter, must pay sixty-two dollars and fifty cents per quarter. Those doing business in any county to the amount of ten thousand dollars, and under twenty thousand dollars per quarter, must pay thirty-seven dollars and fifty cents per quarter, and in any amount under ten thousand dollars and over five thousand dollars per quarter, must pay twenty-five dollars and twenty-five cents per quarter, and in any amount under five thousand dollars per quarter, must pay twelve dollars and fifty cents per quarter." It will be noted that the language of section 4074, above, is: "Every . . . . corporation who engages as a common carrier in . . conveying . . . . express matter. . .. from one place to another for hire . . . . must procure a license”; and section 4043 of the Political Code requires that the license shall be obtained as a condition precedent to the carrier's doing any business. Our inquiry, then, is: Is this an attempt on the part of the state to interfere with or regulate interstate commerce, or, in other 422 words, does the license or occupation tax provided for above affect the business of the defendant company which is interstate in its character, or only that business which is purely local or intrastate?

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While there are some exceptions to be found in the decided cases, we believe the very great weight of authority fairly establishes this as a general rule for the interpretation of license statutes, as applicable to cases of the character of this one now under consideration, viz.: "Where a carrier is engaged in both. interstate and intrastate business, in the imposition of a tax

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