Courts have often interpreted the common law as holding that owners had no duty to keep their livestock off the highway. See, e.g., Kendall v. Curl, 222 Or. 329, 353 P.2d 227 (1960) (owner not liable for collision between horse and automobile). We need not decide whether the early English common law governed the situation presented in this case, but we suspect that any such rule would not be particularly persuasive in light of the vastly different conditions existing in modern Arizona.
In a number of States the rule is that deposition expenses may be taxed to the losing litigant as a part of costs only when the deposition was necessary for use and actually used at trial. ( Barrett v. Singer Co. (1979), 60 Ohio St.2d 7, 396 N.E.2d 218; Casey v. Williams (1971), 87 Nev. 137, 482 P.2d 824; Kendall v. Curl (1960), 222 Or. 329, 353 P.2d 227; Platts v. Arney (1955), 46 Wn.2d 122, 278 P.2d 657; Morrison-Maierle, Inc. v. Selsco (1980), ___ Mont. ___, 606 P.2d 1085; Morris v. Redak (1951), 124 Colo. 27, 234 P.2d 908; Wood v. Gautier (1968), 201 Kan. 74, 439 P.2d 73.) Another group of States allows the taxation of deposition expenses, even though the deposition was not used at trial, if the deposition was taken in good faith and was actually or reasonably necessary for preparation of the case or for the protection of the prevailing party's rights. Stocker v. Wells (1952), 155 Neb. 472, 52 N.W.2d 284; Lawson Supply Co. v. General Plumbing Heating, Inc. (1972), 27 Utah 2d 84, 493 P.2d 607; Lomita Land Water Co. v. Robinson (1908), 154 Cal. 36, 97 P. 10; Kaps Transport, Inc. v. Henry (Alaska 1977), 572 P.2d 72.
In creating open range law, the legislature "has seen fit to treat public highways specifically and at length." Kendall v. Curl et al, 222 Or. 329, 333, 353 P.2d 227 (1960). Moreover, the legislature understood that "permission to range cattle at large would include within designated open-range lands those lands traversed by roads and highways."
II. COMMON LAW NEGLIGENCE Basing their respective decisions upon Kendall v. Curl, 222 Or. 329, 353 P.2d 227 (1960), the trial court and the Court of Appeals concluded that plaintiff had failed to state a claim for common law negligence. We conclude to the contrary.
Defendant took timely exception to the instruction and upon appeal assigns as error the giving of the instruction. In a written opinion which accompanied the trial court's order, the court indicated that the instruction was based upon statements made in Kendall v. Curl, 222 Or. 329, 353 P.2d 227 (1960) to the effect that in a livestock district where it is unlawful to permit livestock to run at large the violation of the statute constitutes negligence as a matter of law. Thus, at one point in the Kendall case it was said, "In numerous parts of the state which have been designated as livestock districts, the act or omission which permits an animal to run at large is a violation of a legal (statutory) duty and hence, if it results in harm, is negligence as a matter of law."
For purposes of appeal, a demurrer admits all facts that are well pleaded. Musgrave et ux. v. Lucas et ux., 193 Or. 401, 408, 238 P.2d 780 (1951); Kendall v. Curl et al, 222 Or. 329, 332, 353 P.2d 227 (1960). A demurrer tests the sufficiency of a complaint; therefore it will be construed most strongly against the pleader.
The government contends that under Oregon law the Willamette National Forest is open range land where livestock may lawfully roam at large. Relying on Kendall v. Curl, 222 Or. 329, 353 P.2d 227 (1960), (and ORS Ch. 607), the government argues that it had no duty to keep its horses and mules off the highway. Hence, it concludes that it cannot be held liable for allowing Rocky and his equine compatriots to run on Highway 20.
In reaching this conclusion, not once did the Court refer to any of the open range doctrine statutes. Further, the Court did not cite to any other western-state jurisdiction's case law that had similarly extended the open range trespass doctrine to the legal relationship between livestock owners and motorists, under similar state laws. See, e.g., Kendall v. Curl (Or. 1960), 353 P.2d 227, 231 (concluding that "[i]f cattle and horses have a right to be on the road [in open range areas], their owner is not negligent in allowing them on the road"). ¶ Subsequently, a series of decisions addressing and applying the open range doctrine to the legal relationship between livestock owners and motorists followed.
"A party entitled to costs shall also be allowed for all necessary disbursements, including * * * the necessary expenses of taking depositions * * *." We first considered ORS 20.020 with respect to depositions in Kendall v. Curl et al, 222 Or. 329, 339-40, 353 P.2d 227 (1960), where we said: "* * * Necessary depositions are depositions to preserve testimony.
The trial court apparently determined that these depositions were not necessary to defend the action and that therefore the costs were not allowable. See Kendall v. Curl, 222 Or. 329, 353 P.2d 227 (1960). Defendants have made no showing on appeal that the depositions were necessary other than a bare assertion to that effect.