Animal Trespass by Horses Causing Property Damage

[JohnnyWest]

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

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.

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.

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

[Mr. Knowitall]

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.

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

(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.

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:

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.

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

[JohnnyWest]

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

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.

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 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.

[Mr. Knowitall]

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.

[budwad]

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.

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.

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

[aaron]

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.

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.

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.

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.

(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.

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.