If your stock trespasses on your neighbour’s land because the boundary fence is not adequate you may be able to avoid liability for the damage by the protection given to you by the Impounding Act 1955. That Act provides that the occupier of land trespassed upon by stock cannot recover damages for the trespass unless the land trespassed upon is fenced. Land is fenced when it is enclosed by an “adequate fence” as defined in the Fencing Act 1978. An “adequate fence” is “a fence that, as to its nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve."
What if the fence is adequate but you introduce different stock onto your land so that a fence which had previously been adequate is no longer adequate? Can you still avoid liability by relying on the protection in the Impounding Act? This question was considered by our Court of Appeal in 1989 in the case of Grainger v Rossendale Holdings Ltd.
Rossendale’s sheep eat Graingers’ cabbages and cauliflowers
Back in 1987 Rossendale grazed a paddock with 150 sheep. The paddock had originally been grazed by horses and had been fenced with a post and seven-wire fence. The fence was suitable for horses and probably for cattle, but it was not sufficient to keep sheep in because there were no battens between the posts and sheep could push through the wires. Mr and Mrs Grainger leased land on the other side of the fence and grew cabbages and cauliflowers. Rossendale’s sheep broke through the fence and destroyed the Graingers’ 100,000 cabbage and cauliflower plants. The plants were worth $26,678.83. In 1987 this was a considerable sum of money. Mr and Mrs Grainger sued Rossendale for the loss.
In its defence, Rossendale relied upon the Impounding Act 1955. Rossendale argued that the fence was not adequate to keep out the sheep and therefore the Graingers should not succeed in their claim.
The Court found that the fence was “adequate” for the purposes of the Impounding Act because it had been adequate for its original purpose - to keep horses in. The Court also said that the fence had not become “inadequate” by the introduction of the sheep as it had never been built to keep sheep in. Rossendale could not therefore rely on the protection of the Impounding Act and the Graingers were successful with their claim.
Avoiding liability for trespassing stock
If you wish to change the type of stock grazing on your land and there is a risk that the existing fence might not keep your stock from trespassing on your neighbour’s land, you should give your neighbour a reasonable opportunity to protect himself or herself – for example, by giving your neighbour a notice under the Fencing Act or by doing some work on the fence. You cannot rely on the protection of the Impounding Act when you put stock of one type against a boundary fence fit for a different type of stock. As the Court of Appeal said in Rossendale Holdings Limited v Grainger, being liable for loss caused in this situation could hardly be described as unfair.
Please email me at [email protected] with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.
Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.