Animal Trespass by Horses Causing Property Damage

My question involves criminal law for the state of: Indiana

OK, this is sort of convoluted but I will try to be as clear as possible to mitigate confusion.

I co-own some property with a new house on it. I own this with another party, we'll call this guy Ron. To get to the property, we use an easement that runs through a neighbor's property. We'll call him Stan.

Stan and Ron also own property together, which is adjacent to Stan's other property (actually a rectangle inside of it.)

Stan's property is mostly pasture which he grazes 7 horses on. He's set up a fairly flimsy fence with an electrified rope on it to keep the horses in a portion of "temporary" pasture. Part of this is within the land that both he and Ron own, but the most of it is on his own land.

Stan and Ron are not on good terms and have little to do with each other. They are adverse owners.

That's the set up.

Last fall, Stan's horses got out (again) and caused damage to my new septic mound and yard to the tune of about 4000 dollars. It was very wet, their hooves went in deep and they grazed the whole yard, reducing the grass to nearly zero and messing things up pretty badly. I called the police and reported it and pressed charges for animal trespass and criminal negligence since this is about the 4th time they've been out but the first time I've sustained damages. Most of the time it's irritating, but this time it's going to cost a lot to get fixed.

After going through the motions of giving my deposition (at their request) and thinking they would take a plea deal (since nobody is disputing it's his horses that got out) now they say they are going to trial based on the fact that the fence is co-owned by Ron and the damaged property is Ron's which makes it a conflict of interest. I say it's Stan's horses, they did the damage and they are Stan's responsibility, not Ron's. Ron doesn't own horses and did not build the fence and was never asked permission about it. It just appeared and that was that. There's a lot of other details I will spare you....

So... do I have a good case still or is some easily-confused judge going to agree with Stan's attorney and not award me damages? Opinions?

Johnny, could you be more specific about your property ownership with Ron? On the one hand you say that you co-own the property but then say the horses damaged your septic mound. Is there some agreement that makes the house yours and not co-owned by Ron?

Is Ron also going to be a plaintiff in this case?

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Quoting budwad

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Johnny, could you be more specific about your property ownership with Ron? On the one hand you say that you co-own the property but then say the horses damaged your septic mound. Is there some agreement that makes the house yours and not co-owned by Ron?

Is Ron also going to be a plaintiff in this case?

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The house is co-owned by Ron, but I'm the one that pressed charges. We use it as vacation property among the families, but I will eventually live there. I'm not sure if Ron is considered a plaintiff or not, since he's not the one that pressed charges. I'm not well-versed on those technicalities.

So there is no civil action but you are trying to collect the damages through the Indiana Code - Chapter 2: ENCLOSURES, TRESPASSING ANIMALS, AND PARTITION FENCES statute?

Criminal charges are prosecuted by the state. This is either a civil lawsuit or a criminal prosecution -- it's not both.

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Quoting budwad

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So there is no civil action but you are trying to collect the damages through the Indiana Code - Chapter 2: ENCLOSURES, TRESPASSING ANIMALS, AND PARTITION FENCES statute?

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It's a criminal prosecution, the county is handling it through the prosecutor. I pressed charges through the police department. I have no idea what laws apply, but I've been looking around trying to find out.

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Quoting JohnnyWest

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It's a criminal prosecution, the county is handling it through the prosecutor. I pressed charges through the police department. I have no idea what laws apply, but I've been looking around trying to find out.

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OK, I've spent hours looking up case precedents, codes and laws. I have found out a few things:

1. IC 32-26-2-1 states

Lawful fences
Sec. 1. (a) As used in this chapter, "lawful fence" means any
structure typically used by husbandmen for the enclosure of property.
(b) The term includes:
(1) a cattle guard;
(2) a hedge;
(3) a ditch; and
(4) any other structure that witnesses knowledgeable about
fences testify is sufficient to enclose property.

I think that it would be easy to prove that the electrified rope (which, by the way, is not always on due to malfunctions which are ignored by Stan) does not constitute a legal fence. Ron has owned cattle on other farms for many years and can prove that a 6-strand electrified rope is not sufficient to hold in animals weighing over 1000 pounds.

2. The fence was erected by Stan and is used by Stan. Indiana law states that ownership is constituted by use. Neither Ron nor I use this fence and in fact, I don't want the fence there, it's in my easement.

3. The horses are owned by Stan. Indiana law states that any animal that wanders onto another's property and causes damage constitutes a liability on the part of the animal's owner. So, regardless of their using this fence as a smokescreen, the liability is Stan's and there is no conflict of interest as Ron does not own the horses.

In other words, even if the land was co-owned by Ron and the horses broke out of a fence built by Stan, since it's his fence, his use, his responsibility and his liability.

Opinions?

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Ind. Code § 32-26-2-2 : Indiana Code - Section 32-26-2-2: Domestic animal breaking into enclosure

(b) This subsection applies in a township for which the board of county commissioners has not adopted an ordinance that allows domestic animals to run at large in unenclosed public areas. If a domestic animal breaks into an enclosure or enters upon the property of another person, it is not necessary for the person injured by the actions of the domestic animal to allege or prove the existence of a lawful fence to recover for the damage done.

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So I think you can forget about proving whether or not the fence was lawful.

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Ind. Code § 32-26-2-3 : Indiana Code - Section 32-26-2-3: Tender of costs and damages; confession of judgment


(a) The owner of a domestic animal described in section 2 of this chapter may:

(1) tender to the person injured by the domestic animal:

(A) any costs that have accrued; and

(B) an amount, in lieu of damage, which equals or exceeds the amount of damages awarded by the court or by a jury in an action filed to recover damages caused by the actions of the domestic animal; or

(2) offer in writing to confess judgment for the amounts set forth in subdivision (1); before an action filed to recover damages caused by a domestic animal described in section 2 of this chapter proceeds to trial.

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It appears from you original post that Stan has chosen not to settle the issue of damages and wants to go to trial on the criminal charges. Will you file a civil suit to recover the damages?

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Quoting JohnnyWest

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I called the police and reported it and pressed charges for animal trespass and criminal negligence since this is about the 4th time they've been out but the first time I've sustained damages.

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The problem being, there's no statute in Indiana entitled either "animal trespass" or "criminal negligence". If you want to know what must be proved to convict somebody of a specific offense you need to actually identify the offense such that it is possible to review its elements. We could be talking about a statute such as IC Sec. 15-17-18-8,

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Quoting IC 15-17-18-8. Animals running at large.

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(a) Except as provided in subsection (b), a person responsible for livestock or poultry who knowingly or intentionally permits the livestock or poultry to run at large commits a Class B misdemeanor.

(b) Subsection (a) does not apply to a person who keeps livestock on property by means of a cattle guard or another device under IC 8-17-1-2.1.

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But if all we're doing is guessing we could be commenting on the wrong statute.

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Quoting JohnnyWest

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...now they say they are going to trial based on the fact that the fence is co-owned by Ron and the damaged property is Ron's which makes it a conflict of interest.

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Makes what a conflict of interest?

If in fact they are correct, that under the law it's Ron's fence, it is Ron who has neglected his fence, and that the animals escaped due to Ron's neglect, then that would seem to be a reasonable defense. But again, you need to identify the statutes for us before we can comment on their elements.

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Quoting JohnnyWest

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Ron doesn't own horses and did not build the fence and was never asked permission about it.

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The fence went up how long ago? Ron has done exactly what since then to enforce the boundary line?

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Quoting JohnnyWest

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....is some easily-confused judge going to agree with Stan's attorney and not award me damages? Opinions?

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This isn't a civil case. The judge might order restitution if the defendant is convicted, but the judge does not award damages.

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Quoting JohnnyWest

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1. IC 32-26-2-1 states... Lawful fences

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You misunderstand that statute. That statute pertains to your fencing your own property, and your recourse if somebody else's livestock breaks through your fence. You don't have recourse under that statute, or those that follow, if your land is unfenced or is inadequately fenced as you did not take the required steps to exclude livestock from your property.

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Quoting IC 32-26-2-2. Domestic animal breaking into enclosur.

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(a) This subsection applies in a township for which the board of county commissioners has adopted an ordinance that allows domestic animals to run at large in unenclosed public areas. If a domestic animal breaks into an enclosure or enters upon the property of another person that is enclosed by a lawful fence, the person injured by the actions of the domestic animal may recover the amount of damage done.

(b) This subsection applies in a township for which the board of county commissioners has not adopted an ordinance that allows domestic animals to run at large in unenclosed public areas. If a domestic animal breaks into an enclosure or enters upon the property of another person, it is not necessary for the person injured by the actions of the domestic animal to allege or prove the existence of a lawful fence to recover for the damage done.

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Please identify the actual statutes for us, from the criminal prosecution.

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Quoting Mr. Knowitall

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Makes what a conflict of interest?

If in fact they are correct, that under the law it's Ron's fence, it is Ron who has neglected his fence, and that the animals escaped due to Ron's neglect, then that would seem to be a reasonable defense. But again, you need to identify the statutes for us before we can comment on their elements.

The fence went up how long ago? Ron has done exactly what since then to enforce the boundary line?

This isn't a civil case. The judge might order restitution if the defendant is convicted, but the judge does not award damages.

You misunderstand that statute.

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Yes, restitution for the actual cost of repairs is what I am seeking, not damages.

The conflict they are trying to conjure up is that Ron is somehow equally responsible for the fence which the horses got out of since it runs across his portion of the co-owned land as well. But responsibility for the fence and ownership of the fence is actually Stan's, since he uses the fence and built the fence and Ron does not use the fence for any reason. As well, the weak area of the fence is not on the co-owned property, that section where there's a rope "gate" and where they keep getting out is totally on Stan's property only, facing the area of grass they want to get to in order to graze.

And, again, the horses are Stan's.

I might be wrong (and hope I'm not) but I think a judge can pretty easily see that:

a. Horses belong to Stan.

b. Horses came on to another property and caused 4000 dollars worth of damage.

c. Stan is responsible for his horses' actions and is liable.


All of this regardless of the fence, it's a clear-cut case of animal trespass resulting in damage wherein the costs of repairs need to be repaid through restitution.


The fence is being used by his attorney as a smokescreen to avoid the issue of liability.

So, OK, let's focus on the fence for a minute:

Actually, under the law, it's not even a legal fence.

1. IC 32-26-2-1 states

Lawful fences
Sec. 1. (a) As used in this chapter, "lawful fence" means any
structure typically used by husbandmen for the enclosure of property.
(b) The term includes:
(1) a cattle guard;
(2) a hedge;
(3) a ditch; and
(4) any other structure that witnesses knowledgeable about
fences testify is sufficient to enclose property.

I know it's not necessarily pertinent to this case, but I think that this pretty much describes what a legal fence is in ANY livestock situation, not just fencing my own property for the purposes of keeping animals out. The "fence out" laws have been changed and the responsibility for keeping animals under control is now more the owner's responsibility (from articles I've read online, but these are opinions, not laws per se.)

The fence is not a legal, permanent type of fence, it is a "temporary" kind of fence used by horse owners sometimes, a series of thin metal poles simply pushed into the ground and an electrified rope that goes across the top of said poles. These are not heavy posts, set in concrete using wire fencing of any kind, like you'd see in any standard pasture. He does have this kind of fence for the other half of his pastures. Because it's temporary type of fencing, Ron has not really been that concerned about "boundaries" per se. If Stan were to erect a permanent fence, we'd immediately go for a court order to halt that construction as the temporary fence runs in the middle of a 60 foot driveway easement for two properties.

As to "animal trespass" , I'm only going on what the sheriff told me. Apparently there is some basis of fact in this because he told me he had given a ticket to another person for the same reason as the animal had gotten out repeatedly yet caused no damage. I don't have access to every single tort or code of law that's out there regarding these things, that's why I'm posting here to see if someone else does. I'm not trying the case here, I'm looking for help in finding the laws that will help me try it (with the prosecutor) in court.

Repeating your previous point, based on an irrelevant statute, is not helpful to moving the discussion forward.

What you need to do is identify for us the specific statutes under which the defendant is charged.

If you have a copy of the information from the case, the charges will be listed there. If not, you can see if there's a victim's rights officer with the prosecutor's office who can tell you the actual charges or, if not, perhaps speak with the prosecutor assigned to the case.

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Quoting Mr. Knowitall

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Repeating your previous point, based on an irrelevant statute, is not helpful to moving the discussion forward.

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We'll have to agree to disagree. I think it's very relevant because if a legal fence is described in one statute, it would most likely stand as a good description for a legal fence for most livestock situations.

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Quoting Mr. Knowitall

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What you need to do is identify for us the specific statutes under which the defendant is charged.

If you have a copy of the information from the case, the charges will be listed there. If not, you can see if there's a victim's rights officer with the prosecutor's office who can tell you the actual charges or, if not, perhaps speak with the prosecutor assigned to the case.

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I talked to the prosecutor's office today (they are closed on Wens.) and the specific charges are "Livestock running at large, with an attachment of restitution pending trial decision or plea agreement". That's verbatim what they told me.

I've been looking some more and have found an Indiana tort (?) case which is perhaps useful in that it describes the opposite type of fence which was held as not negligent (even though my case is not a case about negligence per se) and shows how a good fence and gate combined with past proper supervision of horses is deemed non-negligent by the court. In that case, horses got out, but the owner was not aware and the horses had never gotten out before and the fence was in good repair and never failed.

In my case, the horses have gotten out many times, the owner has been aware and his "fence" (which I feel is not really a fence at all) is not proper nor is it kept in good repair.


https://asci.uvm.edu/equine/law/cases/car/briggs.htm

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Quoting JohnnyWest

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We'll have to agree to disagree. I think it's very relevant because if a legal fence is described in one statute, it would most likely stand as a good description for a legal fence for most livestock situations.

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We can agree to disagree if you choose. It doesn't make you any less wrong.

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Quoting Indiana Code, Sec. 15-17-18-8

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(a) Except as provided in subsection (b), a person responsible for livestock or poultry who knowingly or intentionally permits the livestock or poultry to run at large commits a Class B misdemeanor.

(b) Subsection (a) does not apply to a person who keeps livestock on property by means of a cattle guard or another device under IC 8-17-1-2.1.

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It's far from enough under that statute for the prosecutor to argue that the fence was broken. In order to show beyond a reasonable doubt that the defendant "knowingly or intentionally permit[ted] the livestock... to run at large" the prosecutor would have to show that on the date at issue the defendant knew that the fence was broken and chose to release the livestock into the area knowing that they would be able to pass through the fence and run at large. The statute does not provide for a conviction based on negligence or carelessness.

There does not appear to be any case law discussing the present statute, but there is a lot of historic case law discussing the concept of what it means for an animal to "run at large", for example:

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Quoting Sork v. Taylor Bros., 150 Ind. App. 626, 277 N.E.2d 5 (1971)

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The interpretation of: "* * * to run at large * * *" under the present statute presupposes actual or constructive knowledge that the animal is no longer confined within an enclosure. In Stephenson v. Ferguson (1892), 4 Ind. App. 230, 231, 30 N.E. 714, this court in interpreting the language of the repealed statute stated:

"It has been settled that animals which escape from an enclosure in which they have been placed for the purpose of confining them, and which the owner, when he learns of their escape, endeavors to recover, can not be regarded as animals 'running at large,' * * *"

Again in Wolf v. Nicholson (1891), 1 Ind. App. 222, 27 N.E. 506, this court in interpreting the language of the repealed statute stated:

"Animals which escape from an enclosure wherein they have been placed by their owner for the purpose of confining them, and which he endeavors to recover when he learns of their escape, cannot be regarded as animals running at large within the meaning of this statute." Wolf, supra, 1 Ind. App. at 223, 27 N.E. at 506.

Therefore, we hold under the present statute that there cannot be a running at large without actual or constructive knowledge on the part of the owner that such animals are outside their intended enclosure.

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A negligence standard would apply for a civil lawsuit to recover for property damage.

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Quoting Mr. Knowitall

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We can agree to disagree if you choose. It doesn't make you any less wrong.

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That's an opinion and I take it as such. Every prosecutor and judge is different and they may see it differently than you do. If the code defines a legal fence, why would not that definition stand for other matters? It's simple logic.

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Quoting Mr. Knowitall

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It's far from enough under that statute for the prosecutor to argue that the fence was broken. In order to show beyond a reasonable doubt that the defendant "knowingly or intentionally permit[ted] the livestock... to run at large" the prosecutor would have to show that on the date at issue the defendant knew that the fence was broken and chose to release the livestock into the area knowing that they would be able to pass through the fence and run at large.

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The defendant admitted to police during a recorded conversation that he knew the horses had been getting out and knew his fence was unreliable, which shows he knew they were out when the damage was done as well as knowing they were out on past occasions. As well, I can provide witnesses that the horses had been getting out numerous times in the past few years. As well, the horses got out in April this year and another police report was filed that day after they showed up, however that time there was no damage, just a horse getting out.

If that doesn't show a pattern of a fence that is in disrepair and an irresponsible horse owner that isn't that concerned about their welfare or the welfare of property owners in the area, I don't know what does.

So, yes, he's knowingly put the animals in an enclosure that he already KNEW they were getting out of repeatedly. We're not trying to prove negligence, only need to prove "Livestock running at large" which I see as a slam dunk because of the admission, the evidence and the photographs we have of both damage and horses being out. The restitution part is where it gets iffy because of the fence issue, but for me that's an important part because that's the expensive part. Either way, I will be happy that he has this on his record and any future at-large situations will be reported. Eventually the judge will get tired of him and do something more severe than a penalty.

You believe you know more than anybody else about the law, so there's not point in trying to explain things to you. Good luck.

Your opinion about the legal fence is just that, your opinion. But the law and the courts don't operate on your opinion or interpretation of the statutes. The statutes are taken literally as the legislatures write and pass them. The interpretation of those statutes (when there is a need) is the courts purview and not yours.

You should google "Stare decisis." It's Latin for "to stand by things decided". How laws are interpreted in court is based on all the court decision that came before. Thus, when case law is cited for a decision in your state, in a case that involves livestock running at large that is not Mr. K's opinion but the opinion of the court.

You will notice that there is no mention of what a legal fence is in the statute posted.

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Quote Quoting Indiana Code, Sec. 15-17-18-8
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(a) Except as provided in subsection (b), a person responsible for livestock or poultry who knowingly or intentionally permits the livestock or poultry to run at large commits a Class B misdemeanor.

(b) Subsection (a) does not apply to a person who keeps livestock on property by means of a cattle guard or another device under IC 8-17-1-2.1.

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Therefore, there is no element of the crime dealing with the fence.

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Quoting budwad

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Your opinion about the legal fence is just that, your opinion. But the law and the courts don't operate on your opinion or interpretation of the statutes. The statutes are taken literally as the legislatures write and pass them. The interpretation of those statutes (when there is a need) is the courts purview and not yours.

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Even within the context of civil litigation it's basic statutory construction that you can't pick a random definitions provision from an unrelated statute and attempt to apply it to a completely different statute. With a criminal statute, to try to apply a definition from a civil statute would also raise questions of Due Process. Not only did the legislature not define what is or is not a fence for purposes of the criminal statute, there's no provision at all that relates to what is or is not a sufficient means to keep animals contained or restrained from roaming. Some animals might be tethered, enclosed in cages, barns or other structures, or otherwise restrained from roaming in a way that does not involve a fence. The adequacy of the restraint is not a relevant issue under the criminal statute as the offense cannot be proved by showing negligence, carelessness, or even recklessness.

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Quoting JohnnyWest

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We're not trying to prove negligence, only need to prove "Livestock running at large" which I see as a slam dunk because of the admission, the evidence and the photographs we have of both damage and horses being out.

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In a civil case you would be trying to prove negligence, because you can't win your case unless at a minimum you prove negligence.

For the criminal case the prosecutor has to prove not negligence but knowledge or intent, and has to prove it beyond a reasonable doubt.

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Quoting Indiana Code, Section 35-41-2-2: Culpability

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(a) A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscious objective to do so.

(b) A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of a high probability that he is doing so.

(c) A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.

(d) Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct.

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Having an inadequate fence is not proof of knowledge that the animals are roaming at large on a specific occasion, nor is it evidence of intent that the animals roam be able to roam at large. Having the animals escape from an inadequate enclosure, even on several prior occasions, is not proof of knowledge that the animals are roaming at large on a specific occasion, nor is it evidence of intent that the animals roam be able to roam at large or that there would be a high probability of their doing so on any given day. The facts as stated are that the enclosure is normally adequate but that there was a problem with a portion of the fence, with no evidence offered suggesting that the defendant was aware of the problem on the date in question such that he arguably knew or should have known that the animals would escape.

The prosecutor won't convince the judge to wrongly convict the defendant by repeatedly bringing charges that cannot be proved.

The facts as given would likely support a civil lawsuit based on negligence principles. The facts as given seem to fall considerably short of supporting the described criminal charge.