A gentleman recently told me that his stallion had gotten loose, gone onto his neighbor's unfenced property, and "worried" the neighbor's mares. The neighbor shot at the stallion with a shotgun, and stated that the police told him he was justified in doing so because the stallion was "trespassing on his property."
Is the stallion owner liable for property damage or injury to persons caused by his stallion? Generally speaking, not unless the stallion owner knowingly let the stallion roam free.
Important to this analysis is that Texas is, generally speaking, still an open range state. That is--livestock may still roam at large in Texas with two exceptions:
- Public highways. The Texas Agriculture Code states "[a] person who owns or has responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway." Tex. Agric. Code § 143.102 (Vernon 2004)(emphasis added). The statute defines a "highway" as "a U.S. highway or a state highway in this state, but does not include a numbered farm-to-market road." Id. at § 143.101. Therefore, U.S. and state highways in Texas are effectively considered closed ranged. Conversely, the 40,000-plus miles of farm-to-market roads in Texas are unaffected by this statute.
- Stock Law Counties or Areas. Chapter 143 of the Agriculture Code permits local elections to adopt a law (a.k.a. "stock law"), where a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held. A typical stock law will prohibit horses, mules, donkeys, sheep, goats, and cattle from running at large.
As expressly provided by the Code, some counties in Texas have enacted county wide stock laws, yet others have chosen to elect stock laws only in certain precincts or areas within said county. Unfortunately, there is no statewide index that traces the counties or areas where stock laws have been passed.
Rather, the results of local stock law elections are recorded in the minutes of the county commissioners court for that specific county. Thus, an attorney may have to review several decades worth of commissioners court records in order to locate the results of a stock law election. However, many county clerks, especially those in predominately rural counties, are often able to direct individuals to the applicable stock law or laws for their respective counties. Another quick resource on whether or not you are in a stock law area is the county attorney for your county.
Going back to our fact pattern, even if our friend's stallion had escaped in a stock law county or area, our friend would not necessarily be liable for any injury or property damage caused by his stallion. "A violation of the statute requiring restraint of animals in stock law counties does not create a prima facie case for recovery so as to require the owner of livestock to prove an excuse or explanation for the animals' escape." Davis v. Massey, 324 S.W.2d 242, 243 (Tex. Civ. App.--Waco 1959, no writ). In other words, a knowing violation of the statute or an actual showing of negligence on the part of the stallion owner will generally be required for liability to attach. Also, in an open range counties, farmers and other landowners bear the responsibility to exclude (fence out) livestock. Thus, if the neighbor's property was in an open range area, keeping the stallion out would have been the neighbor's responsibility.
Can the neighbor shoot the stallion if he is "trespassing"? Probably not. In How to Deal With Trespassers On Your Property, we touched on when a landowner may shoot at a person who is trespassing. Lethal force against people is allowed in certain limited circumstances, such as the prevention of arson, burglary, or theft. There is not any such thing as criminal trespass on the part of a horse that would give occasion to use lethal force, because horses cannot know they are trespassing and thus cannot commit "trespass". Secondly, while the Texas Health & Safety Code allows landowners to shoot or kill dogs or coyotes that are posing a danger to their livestock, that statute does not apply to non-canine species.