25 Feb 2019
The right to impound and to claim for damages
One of the perennial problems that farmers face is that of stock wandering or stock getting out and interfering with, or causing damage to, neighbouring properties. Generally speaking, the issue of having a small number of stock grazing on your land for a short time until they are put back in the neighbour’s property may not be too great a concern.
There are, however, some fairly serious issues that can arise, particularly where stock from a pastoral farm, for example, gets into cropping or orchard land where the damage could not only relate to the crops that are eaten or destroyed but also could cause issues with export or organic certification. As a result, losses caused by wandering or trespassing stock could be significantly in excess of the value of the lost crops.
What can be done about this?
The right to impound
The Impounding Act 1955 gives landowners the right to ‘impound’ wandering stock and, in the case of pigs or goats (except for branded angora, saanen or toggenburg goats), destroy them. A landowner can use the provisions of the Impounding Act to impound stock and claim damages for trespassing and/or destroy stock.
The occupier of land trespassed on by stock is only entitled to demand, or recover, damages:
- If the land trespassed on is fenced, or
- If he or she proves that the trespass onto the land was not wholly or partly due to the fact that the land or the portion trespassed on was not fenced, or
- In any case where stock trespassing on any land adjoining the farmer’s land was not fenced and has trespassed onto their land from that adjoining land, they can prove that trespass onto the adjoining land was not wholly or partly due to the fact that the adjoining land was not fenced, or
- The land (whether fenced or unfenced) is situated in a city or part of a district that was formerly a city or a borough.
Generally, any fencing would need to comply with the requirements of an ‘adequate fence’ as defined in the Fencing Act 1978.
The damages for trespass are governed by s26 of the Act and are recoverable from the owner of the stock. Under this legislation, the quantum of damages is ‘Any damages whatsoever on account of the trespass thereon of any stock’.
The landowner can choose to seek ‘trespass rates’ instead of damages (s27). Trespass rates are fairly low and a landowner would usually only elect to do those where stock was simply grazing, as opposed to damaging any crops. Having said that, the trespass rates for stock trespassing growing crops is higher than the trespass rates for animals trespassing on ‘any paddock of grass or stubble’.
If a landowner wants to impound trespassing stock, they have the right to impound the stock in the ‘nearest accessible pound to the place where the stock was found trespassing’ and the stock may be ‘led, driven or conveyed to the pound by the occupier of the land trespassed upon’.
An occupier of land also has the option to impound the stock on their own land or the land that they are occupying ‘in any convenient place’. However, stock cannot be impounded for any longer than two whole days of 24 hours each, after which the stock needs to be either released or conveyed to the nearest pound.
Destroying pigs, goats and chickens
Section 31 of the Act gives the occupier of any fenced land sown in grass, or under cultivation, the right to destroy any poultry, pigs or goats (except for branded angora, saanen or toggenburg goats) found trespassing. Within 24 hours of destroying any such animal or bird, the occupier must send, in writing, a description of the animal or bird destroyed and the place where it was destroyed to the owner if they are known and if not known, to their nearest police station.
Be mindful of the legislation before acting
The rights of occupiers of land trespassed on by stock from neighbouring properties is fairly clear. However, as is often the case, in exercising these rights, any occupier must be mindful of the Act and of the obligations that legislation places upon them.
Stock is an expensive commodity and if the occupier does not follow the rules when impounding or destroying stock, then they could themselves face liability. We recommend that if you wish to exercise any of these rights, talk with us before doing so.
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