Bartsch v. Irvine Company , 149 Mont. 405 ( 1967 )

MR. JUSTICE JOHN C. HARRISON

specially concurring:

It must be realized that Montana is and will remain for some time an open range oriented state. However, it must also be realized that being so oriented or not, we live in the last third of the twentieth century. This is a century which has brought us mixed blessings of automation and technology. As much as we may dislike it, there are certain technological changes which Montana can not react to, as a Brigadoon. Automobile travel is one of these.

This concurrence is meant to be limited to the facts of this case. The testimony in this case covers nearly 300 pages. The evidence is conflicting and contradictory as to the propensities of horses, the care of the horses by the appellants considering these horses escaped and went several miles when the appellant employed about twelve range riders to watch them, the adequacy of the fences, the adequacy of the river as a barrier and other issues of fact. While I must agree with the majority I feel deeply that this is a legislative matter that warrants the utmost consideration by our Legislature. It is not this court’s function to make law, rather it is to interpret the law, but where, as here, we must follow the law given us I feel that justice requires that we point out that human needs should be given consideration. The national government, in its interstate highway program, has fenced off the highways to protect life and limb, and we in this state are spending considerable sums in accident prevention. Aware as I am of the economic problems of our agriculture and livestock industry, I feel we as a people must soon approach legislatively this most humane need to protect our motorist.