E. Cattle Trespass

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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1) Elements of Liability

An owner of cattle is strictly liable for damage caused by the escape of his cattle onto land in the possession of the plaintiff.38The term "cattle" has been defined expansively. It extends to most farm animals such as cows, sheep, goats, horses, pigs, and ducks. It does not include cats and dogs, probably because it has never been customary to fence in cats and dogs and landowners have been willing to accept the annoyance of occasional intrusion by them. The plaintiff is, normally, an occupier of neighbouring land and the most common complaint is damage to or destruction of crops. Liability does, however, extend to other forms of damage which flow from the trespass, including damage to land, chattels, other animals, personal injury to occupiers, and, possibly, personal injury to non-occupiers.

There are some exceptions to the strict liability of cattle trespass. When cattle escape onto adjoining land while they are being driven along a highway39or cause injury to motorists and passersby when they

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escape from adjoining land onto the highway,40liability must be established in negligence.41

2) Defences

Most of the defences to cattle trespass mirror those found in the sci-enter action.

a) Default of Plaintiff

There is no liability where the cattle escape onto the plaintiff’s land because of the plaintiff’s negligence. The plaintiff may, for example, forget to close a gate between her property and that of the defendant. There is, however, no duty on the part of the plaintiff to fence her land to keep cattle out. Cattle trespass is based broadly on the owner’s duty to fence cattle in.

b) Consent

Consent to the intrusion of cattle is a complete defence. This is most likely to arise where the plaintiff has given a licence to the defendant to graze cattle on the plaintiff’s land.

c) Deliberate Act of a Stranger and Act of God

It is doubtful that these defences are applicable to cattle trespass. The reason is that their recognition would severely restrict the scope of strict liability because the escape of fenced cattle is likely to arise from deliberate acts of strangers or from severe natural phenomena such as floods, ice storms, blizzards, and tornadoes.

3) Distress Damage Feasant


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