Animal Trespass by Horses Causing Property Damage

[JohnnyWest]

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?

[budwad]

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?

[JohnnyWest]

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?

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.

[budwad]

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?

[Mr. Knowitall]

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

[JohnnyWest]

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?

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.

- - - Updated - - -

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.

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?

[budwad]

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.

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

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.

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?

[Mr. Knowitall]

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.

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,

(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.

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

...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.

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.

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

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

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

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

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

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.

(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.

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

[JohnnyWest]

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.

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.

[Mr. Knowitall]

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.