Surprisingly, my 2008 post entitled How to Deal With Trespassers on Your Property has returned more hits than virtually any other single post on the Equine Law Blog. The search terms that usually land people on that post are some variation of “when is it legal for me to shoot a trespasser?” or “shoot + trespasser + [name of state]”.

Looking at the almost daily searches about shooting trespassers that keep landing people on the Equine Law Blog, it would seem that we have a real issue in this country with trespassers. It would also seem that landowners do not feel that dialing 9-1-1 is going to solve the problem. 

Last weekend’s bizarre horse-stabbing case from Pine Grove, California perhaps illustrates the trespassing problem. According to news reports, a man named Gaylord Neil Story, 59, trespassed onto his neighbor’s property, appeared at her door covered in blood, attempted to force his way into her home, chased her through a pasture, rummaged through her vehicle, and stabbed her 14 year-old Quarter Horse gelding. 

But this victim never shot at Story. Instead, she fled her residence and called 9-1-1. Sheriffs’ deputies arrived 12 minutes after the call.

At some point after sheriffs’ deputies arrived at the scene, Gaylord Story brandished a large butcher knife and advanced towards the officers. Deputies opened fire on Story in self defense. Story, who was struck by four rounds (two rounds each from two officers), was dead when medical personnel arrived. However, an autopsy also revealed several self-inflicted stab wounds, one of which would have been fatal.

Luckily, the victim was not injured. The horse was severely injured as a result of the stab wounds, but is expected to make a full recovery.

Reports indicate that the deputies who shot Story have been placed on administrative leave pending an investigation by the California Department of Justice. 

All of this raises some questions: 1) is the trespassing problem increasing because trespassers are no longer afraid of being shot at by landowners? 2) if even the sheriff’s deputies are being investigated for shooting Story (who would have probably died anyway due to self-inflicted stab wounds), what does this mean for landowners?

This prior post contains a summary when it’s permissible under Texas law to use deadly force against a trespasser.  My dad, a native Texan, always says, "I’d rather be judged by 12 than carried by 6."  Texas law basically says that If you reasonably believe you’ll be "carried by 6" (i.e. dead) if you don’t shoot, you’re probably justified in shooting.

The facts surrounding the Story case seem to fit the bill of a case where the victim landowner could have legally opened fire on a trespasser (at least if the incident had occurred in Texas). But unfortunately for landowners, they probably subject themselves to an investigation (and possibly even a trial) if they choose to shoot a trespasser (no matter the circumstances). And would-be trespassers probably know this.

Disclaimer: I don’t specialize in criminal law…so don’t go shootin’ somebody based solely upon something you read on the Equine Law Blog!

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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:

  1. Public highwaysThe 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.
  2. 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.

Continue Reading Is a Horseowner Liable for Damages if a Horse Gets Loose?

Landowners who run horse businesses on their land often run into situations in which an unwelcome person attempts to come onto their property.  Sometimes the unwelcome party is someone who once boarded their horse with the property owner, but no longer has a business relationship with the property owner.  In other instances, the trespasser may include a current boarder who has stopped paying the property owner the agreed amount, but still comes out to enjoy the facility as well as their horse without also bringing payment.

Except in special circumstances (mineral exploration, freshwater lakes and streams, easements, beaches, cemeteries) land owners do not have a legal obligation to let uninvited parties onto their land if it is privately-owned.  In other words, the fact that a land owner is running an equine-related business on their land does not give uninvited or unauthorized persons the right to access the private land.  Under Section 30.05 of the Texas Penal Code, a person commits criminal trespass if "he enters or remains on or in property of another without effective consent and he 1) had notice that the entry was forbidden; or 2) received notice to depart but failed to do so."

Below are some steps landowners can take to protect their property from trespassers before a trespass occurs:

1) Post a Sign on Your Property – In addition to the posted sign bearing the Chapter 87 equine liability statute, landowners should also post a "Private Property–No Trespassing" sign at a conspicuous place near the entrance of their property. 

2) Immediately Notify A Former Guest That They Are No Longer Welcome – If someone who used to have permission to access your land is no longer welcome, give them notice, either orally or in writing, that they are no longer welcome on your property and if they attempt to access your property (other than to pay you and take their horse, if money is owed), you will call the sheriff.

3)  Include a Trespass Provision in Your Contracts – If you require people who access your land to sign contracts, include a provision in the contract that your land is private property and you reserve the right to deny them and their guests access if they breach the contract, even if their horse, tack, or other belongings remain on your property;

4)  Secure the Property – If you know a trespass is imminent, lock the gate or take other measures to prevent entry upon the land.  Call the sheriff or local police if you’re in the city limits and let them know a trespasser is trying to get onto your property.

If, despite these efforts, someone trespasses on your property, the best thing to do is to call the sheriff and let them handle the trespasser.  If for some reason you cannot have law enforcement intervene, Texas law (Section 9.41 of the Texas Penal Code) allows you to use "reasonable force" to protect your property.  Reasonable force includes any force that is not potentially lethal.  This would probably include physically blocking the trespasser’s entry onto the land and perhaps even showing the trespasser that you have a gun and are prepared to use it if warranted.  However, as discussed below, an actual discharge of a firearm, unless clearly not aimed anywhere towards the trespasser, may expose the land owner to unwanted scrutiny by law enforcement.

When is a landowner allowed to shoot at a trespasser?  According to Section 9.42 of the Texas Penal Code, a landowner can shoot at or use other deadly force against a trespasser if the landowner reasonably believes the land or property cannot be protected or recovered by any other means, or that the landowner himself would be exposed to substantial risk of death or serious bodily injury if the landowner does not use deadly force. A landowner can also shoot at or use other deadly force against a trespasser if the force is immediately necessary to prevent the trespasser’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime; or to prevent the trespasser who is fleeing immediately after committing one of those acts from escaping with the property.  "Criminal mischief" includes "knowingly or intentionally damaging or destroying, tampering with or marking, inscribing slogans, drawing or painting on tangible property " of the property owner. 

Using potentially dangerous measures to protect your property is not recommended in all cases, as it can expose a property owner to possible physical harm and also criminal prosecution if too much force is used.  However, property owners should be aware of, and exercise, their right to protect their property under the proper circumstances.