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When livestock stray

Landowner rights under Oklahoma’s fencing law

published in McAfee & Taft AgLINC | February 1, 2012

By Jeff Todd

Oklahoma is a “fenced in state.”

Title 4, Section 155 of Oklahoma Statutes provides that an owner of livestock is liable for “all damages done by animals breaking through or over lawful fences and trespassing upon the enclosed lands of another.” In addition, “the animals so breaking through or over such fence may be seized as trespassing animals.” This statutory language has been construed to make the owners of straying livestock strictly liable (i.e. liable without fault) for “agriculture damage” caused by their animals.

For years, I have fielded calls regarding Oklahoma’s fence laws. Typically, the questions center around potential liability if an animal causes a car accident (in which case a negligence standard applies). However, because of the widespread drought of 2011, the recent inquiries have focused on what to do about a neighbor’s animals straying onto adjoining pastureland or into haystacks. Unfortunately, it appears that some livestock producers have run so short on forage and hay that they have turned a blind eye on their livestock venturing onto neighboring properties. There have been some reports of gates being intentionally left open.

Oklahoma law provides a remedy for the landowner who encounters this disturbing situation. If livestock trespass on another’s land they can be “distrained.” Distraint is “the seizure of someone’s property in order to obtain payment of rent or other money owed.” 4 Okla. Stat. § 156 provides that a distrainer has lien rights in the trespassing livestock: “In all cases where the plaintiff may recover judgment for damages caused by the trespassing of animals of another the judgment shall be a lien upon the stock so trespassing and the plaintiff may have special execution for the sale of such stock to satisfy the judgment and costs or general execution as he may elect.”

4 Okla. Stat. §§ 132-135 provide a process for when livestock are distrained. While the procedure is somewhat complicated, the end result is this: if a livestock owner fails to keep his animals fenced in and the straying animals venture onto your property and do damage to your crops, grass, hay etc., you may pen up the livestock. You must then follow notify the owner and try to work out payment for the damage. If that does not relieve the situation, you must notify the sheriff who is required to act as an arbiter of the dispute. If the owner does not pay the amount of damages determined by the sheriff, the sheriff can sell the livestock. During the process, the distrainer has a possessory lien on the livestock and may maintain possession of the animals, but must provide adequate care. The distrainer should be entitled to reimbursement for the cost of boarding the livestock.

Finally, if straying livestock have caused damage, but the animals were not able to be distrained, you may also file suit against the livestock owner and recover damages (remember: strict liability if the damages are to agriculture land). You should also be able to recover attorney fees under 12 Okla. Stat. § 940, which provides for the recovery of attorney fees in cases involving the negligent or willful damage to property.

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