KEEP THAT GATE SHUT

Cue (NZERS), Issue 28, 31 July 1945, Page 41

KEEP THAT GATE SHUT

« A NIMALS are such agreeable r A friends” said George Eliot in ’’Scenes of Clerical Life” but every animal owner knows that these same ’’agreeable friends”, like many, of their human -counterparts, are by no means all possessed of unimpeachable qualities. . Consequently, there are laws of the land .dealing with these animal friends, both tame and wild. It is. the law relating to the former that concerns most people more intimately. '

At one time it seemed to be accepted that a man .was under no duty to prevent his-harmless animals from straying on to the highway. Generally ■ speaking, he does not now escape liability so easily. Motor traffic has raised in an acute form a problem which scarcely troubled our ancestors. They found it easier to dodge a cow in a horse and cart, than we do in a < car. The result is that the law now states that, where the highway is in a 'town, the owner of animals must take reasonable care to prevent them from straying on to the highway and is liable for damage done if he neglects .that duty. What is reasonable care must depend upon the circumstances. In the case of country roads,, this duty does not normally exist but it may arise, and this is possible if the animals are in such a y place that their emergence from it in large numbers on to the highway is 'likely to obstruct it and to- damage the person or property of a user. ' . z -' ~

The straying cattle can also be impounded. Any pound keeper or person f .authorised either by local authority in charge of , the roads or by any person owning adjacent land, may

impound cattle . found ’’straying in, or lying about, or tethered in, any road or other place of public resort or so immediately adjoining thereto, as to obstruct the - same.” The owner is liable to a fine up to L2 a head in addition to incidental expenses.

Drovers will appreciate how difficult it is to keep cattle from straying from the road upon which they are travelling to adjacent property. Near the close of the last century, a drover was driving an ox with due care through a town. Unfortunately, it entered an ironmonger’s shop - through an open door. It took . three-quarters of an hotair* to get it : out. The owner of the ox was held not liable to the owner of the shop for this was one of the inevitable risks that arise from driving cattle in the ' streets. Therefore, if cattle are lawfully on the highway, under the control of a drover, there is no liability if or trespass if they wander on to adjacent land in the absence of negligence on the part of the drover. Further, the owner or drover is entitled to enter the premises in order to get the beasts out, and. for that purpose he must be allowed reasonable time. ■' ’

. Cattle trespass has caused much litigation. Considering, however, that the first recorded case was . in 1214, this is . understandable. It has been held again and again that there is a duty on a man to keep his cattle in, and if

they get on another’s land, it is a ires, pass; .and that is irrespective of negli.. gerice. The word ’’cattle” has been held to mean horses, .oxen, cows, sheep, swine, asses, fowls, 1 geese, ducks and probably peacocks and turkeys. In England, cats and dogs fall cutside tlib category. For their fleeting visits to 'the. land of other people there is no liability. The old idea, was that dogs were outside the category because, unless they were , hunting dogs, they , were savage ”hangers-on” in human communities, and that as such they belonged to no l body, and nobody was responsible for (hem.

The. reason these days for their non-liability, is that cats and dogs are not usually confined, J while cattle. are, and it is to the general interest of the community that they should be,.kept and allowed reasonable liberty. It is impossible to keep, them under the same restraint as cattle. In New Zealand, however, it seems that by virtue cf the Dogs Registration Act the keeper of a dog would be liable for its trespass. The law. as to trespassing cats, however, is the same as in England. But although cats cannot trespass, an owner of one of these animals is liable, , say, if he had been warned by another person that his cat had repeatedly killed that person’s chickens and he, had been asked to repair a gap in his fence through which the animal strayed. The owner would then be liable for negligence. '

As to the . liability for cattle trespass, it may be stated as a general-rule that, no matter where the trespass occurred, the owner of cattle is liable. However, if your cattle stray on to the land of your neighbour, their access being through an unfenced portion of his land which he was liable to fence or keep in .repair, then you - are not liable. You may even have an action against him for any harm which your cattle may suffer. '

• Next as to the kind of damage which is actionable. The rule of law is that this must be damage which is natural to the species. If a mare trespassing at night in a strange field causes damage to another horse by kicking it, the damage is actionable. If, however, a horse strays on to a highway and kicks over and damages a, bicycle, such damage, is not actionable, as it is not : natural for a horse to kick over bicycles.

A question which may be asked is: where the trespass has not been 'your, fault but is. due to the act of some third person are you liable? The answer is ’’No” unless you have been negligent in failing to anticipate or to guard against the . default of the third party. ■ - ' - .7;

If a man suffers damage from trespassing cattle he can. expel them by/ reasonable means and can then sue for damage dene. Another remedy avail, able is known as ’’Distress Damage Feasant”. Where an animal or animals stray , upon a man’s land and do damage he may seize and hold them. The taking is only, a mode of compelling the offender to pay compensation for the damage done and, therefore, ' directly such payment is made, the thing seized must be restored. Distress, cannot be made of animals in use. For instance, . a man cannot seize a horse another is riding/; although its owner is trespassing, on his land. His proper remedy is an action for trespass. . _ v '

It is important to note that it is not. possible to bring an action for damages for cattle trespass and also make, ’’.distress damage feasant”. If the trespassing animal escapes, a farmer has no right to recapture it even i » the owner chases it out. The farmer also loses his right of action for trespass (which * he would have -if the animal escaped) unless he can shov that the escape was not his fault. ® must feed and water the anima.

detained and, in the case of cows, milk them. He can claim compensation for the fodder. • '

A further remedy is the right given by the Impounding Act, 1908. This Act empowers the occupier of any land trespassed on by cattle to impound ’ them, but, > except as provided K for in the Act, in regard to pigs or goats, the occupier of any unfenced land is not normally entitled to demand or recover any damages whatever by reason of the trespass thereon of any cattle, except fees for driving or giving notice of their detention. In this respect, however, i should be noted . the provisions of the Statutes Amendment Act 1939, Sec. 32, ' which state that ’’notwithstanding anything to the contrary in the Impounding Act, the Occupier of any lunfenced land trespassed upon by cattle may claim, the same trespass rates or damages under the principal Act as if the land had ‘ been fenced, if he proves that the trespass on his land, or on to any land adjoining his land and not . fenced therefrom, was not directly, or indirectly, or wholly or partly due to the fact that his land or the adjoining ’■land, as the case may be, was not fenced.”

? The occupier of fenced land, on the ■other hand, may sue for the trespass rates or for actual damages incurred, but in the latter case, the cattle may r not be detained in the pound until payment is made. / m ■ ■ ■ ■ / The above two provisions do not apply in Nelson, Marlborough, Westland and Otago in respect of which {' special provisions are' laid down. 1• • • . s . . • '■' m • Cattle must normally be impounded , in the nearest accessible pound to the place of trespass. Instead of sending /them to the pound, an occupier of any land trespassed on by cattle, if he knows the owner of the animals, may impound them in a convenient place upon his own land. ‘ . •

In the case of trespass by pigs, goats (other than branded angora goats) or poultry on any fenced land in artificial grass, or under cultivation, the occupier land may destroy the trespassers. But he must within twenty-four hours send in writing a description of the animal to the owner

if known, - otherwise to the nearest Police Station. If within forty-eight hours of their destruction the/owner does not remove the' carcasses the occupier must bury them. Mention must be made of the ’’Scienter Rule”. This 'may be explained in the following way— you own or are in control of an animal which you know to be mischievous, or if the law presumes you know of its mischievous disposition, you must keep it secure and prevent it from doing damage. Liability under * the rule requires two essentials — (a) vice or ferocity of some sort and (b) knowledge (actual or imputed) of that vice or ferocity. ,

In addition, in the case of tame animals, there is no liability unless the vice or ferocity displayed by the animal is contrary to the nature of the species to which it belongs. No one will succeed in an action because cats stalk birds. If, however, a man can prove that your, cow is savage to. human beings, this is' contrary to the nature of cows and provided your knowledge of its disposition is established you are liable. _; - . A further illustration is given in the case of Jackson and Smithson in 184 G. Mr. .Smithson’s ram encounteredCatherine’Ann Jackson and. ’’did then -attack, butt and 1 gore the said. Catherine Ann, and cast and throw her down to and upon the ground, divers /to wit, five times, and thereby the said Catherine Ann was greatly hurt and injured”. In the case that followed Mr. ■ Smithson was held liable. The judge expressly regarded the ram as breaking through the tameness of its nature and he declined to accept the popular idea that all rams butt.

With a tame animal it must be proved that the owner knew of its tendency to do that kind of mischief. There is no need to prove that the animal has actually done* harm on a

previous occasion ; it is enough to show that it had manifested - such a tendency. It may be added that anyone who harbours the animal knowing its vicious quality is responsible ' for it. If the mischievous animal escapes, the owner is liable until someone assumes permanent control of it, with knowledge of its vicious propensities. If, however, the/injury done by the animal was due. to the default of the person injured, the owner is not liable. Thus if a man strokes a dog properly chained up with a warning notice over its kennel he cannot complain. 'Furthermore, the owner can free himself from liability if he gives sufficient notice of the animal’s mischievous tendencies. What constitutes sufficient warning -depends on the circumstances.

Where, a person enters the owner’s property in the course of some public duty, such as delivering mail, no warning will exempt the owner if he does not properly secure the animal. In respect of dogs, the common law rules have been altered by the DogRegistration Act so as to impose practically an absolute liability', on the owner, but this forms almost a separate subject for which there is no space here. .