Q: My cattle strayed and damaged the neighbour’s hay bales. The neighbour is seeking payment from me. However, I do not believe I am responsible.
The area where the cattle strayed is at the boundary of three parcels of land. Some years back the third owner set fire to some old windrows that he had bulldozed down. The fire spread to a stand of trees on the boundary of the three parcels. The trees died and several fell, knocking over the fence. Who is responsible in the circumstances?
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A: As a general rule the owner of straying cattle is responsible for all damages that they cause. However, there are exceptions. First, both Manitoba and Saskatchewan allow local municipalities to make bylaws allowing animals to stray. If there is a bylaw allowing animals to stray, the owner is only liable if the animals break through a lawful fence.
Manitoba legislation also says the owner of a stray is not liable for damages if he can show that his control of livestock was “in accordance with generally accepted agricultural practices” or that the animals strayed because of an “act of God” or as a result of someone else’s actions other than a family member or employee. Manitoba legislation also provides that the owner of cattle that stray and cause damage can also claim damages from anyone else who contributed to the loss.
While Saskatchewan and Alberta legislation is not as specific, in my view the law would be the same. Someone who damages a fence would also be liable if the cattle strayed.
Alberta legislation also provides that a person who suffers damage cannot recover from the owner of cattle if he is at fault himself.
However, the fact that a person did not put up a fence to keep out strays is not deemed to be fault. Thus, an owner who knocks over a fence line cannot complain when cattle stray through the breach. Similarly, a person who tampers with a gate or opens a gate and then fails to close it, is liable for damages if the cattle stray.
Back to your scenario: your neighbour would be within his rights to claim against you.
In Manitoba, there would be no responsibility if you establish that damage was a result of someone else’s actions.
In Alberta and Saskatchewan, you may have to counterclaim against the individual who set the fire. Of course, in all provinces you would have to show that the fire was the cause of the fence falling down.
This would mean proving that the neighbour started the fire, as opposed to a lightning strike, and did nothing to control it.
However, a judge may find that there is shared responsibility. Even though the fire killed the trees, you might be partly responsible in not taking action to clear any dead wood. Generally, a landowner who has cattle has an obligation to maintain a proper fence.
If the owner of the hay was the one who started the fire, he would probably have no claim.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
