This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




John Rhea,



Roger Lashua,


Filed January 26, 1999


Shumaker, Judge

Hubbard County District Court

File No. C9-97-337

Trevor P. Van Berkom, Forrest Hutchinson and Associates, 3100 13th Avenue SW, Suite 402, Fargo, ND 58103 (for appellant)

Paul R. Aamodt, Aamodt & Lamb, 2829 South University Drive, P.O. Box 966, Fargo, ND 58107 (for respondent).

Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.



Appellant John Rhea challenges the district court's grant of summary judgment dismissing his claim that respondent Roger Lashua violated Minn. Stat. § 346.16, arguing that the district court erred as a matter of law in determining that respondent's horses that injured appellant were not "running at large." We affirm.


The material facts of this case are undisputed. On October 9, 1996, appellant John Rhea visited the residence of respondent Roger Lashua to help him split wood. While the two men worked, Lashua allowed his four quarter horses to graze on his property, outside the corral. At about 12:00 p.m., Lashua and Rhea went inside Lashua's house to eat lunch. After returning outside, but before they continued splitting wood, Rhea stopped at the front porch to have a cigarette.

At that point, Lashua told Rhea that he would put the horses in the barn. After Lashua whistled for the horses, they came up to the barn and stopped to get a drink of water. Lashua then stepped into the barn to get a pail of oats so that he could lead the horses into the barn. When Lashua came out of the barn, Rhea was lying on the ground and the horses were running across the yard. Neither Lashua nor any member of his family saw what happened to Rhea, and Rhea himself does not remember the incident. It is undisputed that Rhea suffered various injuries caused by the horses and that this incident occurred on Lashua's property.

Rhea brought this action against Lashua, alleging a violation of the "running at large" statute, Minn. Stat. § 346.16 and common law negligence. Upon motion for summary judgment, the district court determined that section 346.16 was inapplicable to the facts of this case as a matter of law. Rhea appeals.


On appeal from summary judgment, we must determine whether there are any issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A motion for summary judgment shall be granted when there is no genuine issue of material fact and either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citing Minn. R. Civ. P. 56.03). The construction of a statute is a question of law and is fully reviewable by this court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Minn. Stat. § 346.16 (1998) states:

The herding of any animal of the species of * * * horse * * * upon any land over the protest and against the will of the owner shall be deemed a running at large.

It shall be unlawful for any owner or any person having the control of any such animal to permit the same to run at large in the state.

Any person who shall knowingly permit the running at large of any such domestic animal shall be liable to the person aggrieved for treble damages sustained by the aggrieved person, to be recovered in a civil action brought for that purpose.

A violation of section 346.16 is negligence per se. Pigman v. Nott, 305 Minn. 512, 513, 233 N.W.2d 287, 288 (1975). In the context of Minn. Stat. § 346.16, "running at large" includes the permitting of an animal to "stroll, wander, rove or ramble at will without restraint or confinement." Id. (quoting Serr v. Biwabik Concrete Aggregate Co., 202 Minn. 165, 278 N.W. 355 (1938)). As this definition shows, the majority of cases have extended the reach of the narrow statutory definition to also prohibit an owner from allowing his animals to wander. See Peterson v. Pawelk, 263 N.W.2d 634, 637 (Minn. 1978) (undisputed that animal wandering onto highway was running at large).

In the context of other statutes, Minnesota courts have stated that an animal may be deemed to be running at large on his owner's property. In Goener v. Woll, 26 Minn. 154, 157, 2 N.W. 163, 165 (1879), the Minnesota Supreme Court stated that an unrestrained animal, "even though it be upon land belonging to his owner, * * * runs at large within the meaning of the statute." The supreme court similarly held in Johnson v. Minneapolis & St. Louis Ry. Co., 43 Minn. 207, 45 N.W. 152 (1890) that an animal roaming at will at a point where a public highway crossed her owner's land was running at large. More recently, this court determined that a lessor's cattle were running at large when they wandered into the lessee's field and damaged his crops. Neilan v. Braun, 354 N.W.2d 856, 859 (Minn. App. 1984).

Rhea asserts that the horses were roaming at will with Lashua's knowing permission at the time that they injured Rhea, that animals may be deemed running at large on their owner's property, and that, therefore, the district court erroneously determined that the horses were not running at large in violation of Minn. Stat. § 346.16 when they injured Rhea. We disagree. Because section 346.16 does not prohibit animals from roaming at will on their owner's property, we conclude that the district court properly entered summary judgment.

Citing the Goener, Johnson, and Neilan decisions, the district court found that Minn. Stat. § 346.16 applies to animals roaming at will even when on their owner's property. However, we find that the district court's reliance on those cases was misplaced because the present case involves a statute different from the respective statutes applicable in those cases. See Goener, 26 Minn. at 155, 2 N.W. at 163-64 (considering the application of Gen. St. ch. 19, §§ 39, 40 (1878), a statute that authorized a town to sue the "owner * * * of any ram" for five dollars a day if he allowed the animal to "run at large" in the town); Johnson, 43 Minn. at 207, 45 N.W. at 152 (interpreting Gen. St. ch. 10, § 16, subd. 6 (1878) which prohibited animal owners from allowing their livestock to go at large between October 15 and April 1); and Neilan, 354 N.W.2d at 859 (examining the application of Minn. Stat. § 561.09 (1982), a statute which permits an aggrieved party to recover treble damages from "any person who shall knowingly permit the running at large or trespass of any such domestic animal").

The fact that none of these cases involved the application of Minn. Stat. § 346.16 is significant because none of the statutes examined in the cases contained a definition of "running at large." Section 346.16, however, contains a definition of "running at large" which states that "the herding of any animal of the species of * * * horse * * * upon any land over the protest and against the will of the owner shall be deemed a running at large." Nowhere does the statute prohibit an animal owner from herding his animals across his own property. The statutory framework shows that section 346.16 holds an animal owner to a lower standard of conduct when his animal causes damage to the owner's property than when the animal damages another's property. In this important way, the language of Minn. Stat. § 346.16 differs from the statutes at issue in Goener, Johnson, and Neilan. Because the Goener, Johnson, and Neilan decisions interpreted "running at large" in the context of statutes different from Minn. Stat. § 346.16, those cases do not control.

For guidance, it is more appropriate to look to Lackey v. Peterson, 161 Minn. 315, 201 N.W. 428 (1924) where the supreme court considered the application of Gen. St. ch. 459, §§ 6063-6065 (1913), a statute that was nearly identical to Minn. Stat. § 346.16 and that contained the same definition of "running at large." In that case, the supreme court determined that horses were not running at large as they crossed a highway traversing their owner's farm, despite the fact that nobody was in charge of the horses and they were not enclosed. Id. at 315, 201 N.W. at 428. The supreme court reached this conclusion, in large part, because

the horses were not trespassing while crossing the road, for they were on land the defendants had the right to use for any purpose not incompatible with the enjoyment of the public easement.

Id. at 317-18, 201 N.W. at 429. Simply put, the Lackey court determined that a statute with language mirroring Minn. Stat. § 346.16 should not be applied to horses roaming upon their owner's property. Accordingly, we decline to so extend the reach of section 346.16.

Because we have determined that Minn. Stat. § 346.16 does not apply to animals roaming at will on their owner's land, we need not determine whether Lashua permitted his horses to "stroll, wander, rove or ramble at will without restraint or confinement." Pigman, 305 Minn. at 513, 233 N.W.2d at 288.