Fencing, Trespassing Stock and Wandering Stock

With spring now here and plenty of calves and lambs running around, stock control will be an important consideration on every farmer’s mind.  On-farm, stock control comes down to adequate fencing appropriate for the type of stock you are containing.  However, the law around fencing stock and who is responsible for the damages if they escape, may not be as straightforward as you think.

The Law

While you may assume that, if your stock escapes and causes damage to a neighbouring property, you are entirely at fault and must provide a remedy, this is not necessarily the case.

Section 21 of the Impounding Act 1955 provides that an owner of land may seize and impound stock found trespassing on their land.  However, the owner of the trespassed land may only be entitled to recover damages if their land was adequately fenced.  Therefore, both parties hold an element of responsibility.

Adequate Fencing

Section 2 of the Fencing Act 1978 defines an “adequate fence” as a fence by which its nature, condition and state of repair are satisfactory for the purpose that it serves or is intended to serve.  For example, if you are surrounded by dairy farms and you build a fence suitable for sheep, but the neighbour’s dairy cows break through, you may not be able to seek damages from the neighbour.  If the fence is already in place and the animals being grazed changes, you should discuss with the neighbour updating any boundary fencing to ensure it remains fit for purpose.  The Fencing Act 1978 sets out ground rules for contributing to the cost of boundary fences.

Impounding Stock

If your stock enters another person’s property and/or remains there without permission, this can be considered trespassing.  If you allow stock to remain on someone else’s property after they have asked you to remove them, this constitutes criminal trespass under section 3 of the Trespass Act 1980.

If stock is trespassing on your land, the Impounding Act allows you to impound the stock on your property, or in the nearest accessible pound.  The stock may be led, driven, or conveyed to the pound by you, or an agent.  The owner of any adequately fenced land, sown in grass, or under cultivation, may arrange for the destruction of the trespassing stock if the stock is pigs, poultry, or goats (except for specific breeds).  Section 31 of the Impounding Act requires you to notify the owner (or the police if the owner cannot be contacted) within 24 hours of destroying the stock.

Recoverable Damages

Section 26 of the Trespass Act determines the damages that are recoverable on the account of the trespass of stock.  However, a landowner can choose to seek ‘trespass rates’ instead of suing for damages.  Trespass rates are usually lower and will likely be sought where stock were grazing on paddocks, rather than causing any significant damage to crops or property.  The trespass rates will vary depending on the stock and the land they graze.  For example, cows trespassing on cultivated crops will receive a much higher trespass rate than a horse grazing on grass.

So, what happens when stock have their “the grass is greener on the other side of the fence” moment, but the other side of the fence happens to be the neighbour?  Your stock may be guilty of trespassing and your neighbour may impound and/or destroy them.  But if the neighbour did not adequately fence their property, the cost of damage may be on them.

Being a Good Neighbour

Schedule 2 of the Fencing Act cites four types of fences best suited to rural properties.  However, in some instances, further consideration beyond the basic legal requirements will be needed when it comes to ensuring stock is adequately fenced. Bulls on boundary fences can be a major source of concern.  Other animals which may cause additional fencing concerns are stallions and stags.

Ensure you keep in contact with your neighbour about stock movement and when stock will be on boundary fences.  If there are bulls on the boundary, a fence normally suitable for cattle may require additional measures.  Discuss with your neighbour whether additional hotwires or outriggers are required.  If the neighbour farms bulls, and you have cows, discuss whether it is possible to alternate-graze boundary paddocks to reduce the risk of fencing issues.

Points to Consider Before Acting

1. Make sure you have adequate fencing, appropriate for the type of stock on your farm or lifestyle block.
2. If your stock escapes, assist in returning them as soon as possible to their rightful property.
3. Equally as important, ensure fencing on your own property is adequate to keep out any wandering stock.  You should not rely on the stock owner.
4. Stock is expensive, so ensure you follow the process set out in the legislation before impounding or destroying stock, otherwise you may find yourself liable.
5. Keep in contact with your neighbour about stock movement.  Good rural etiquette will help avoid stock and boundary issues.

If you have any questions regarding the legality of wandering stock entering your property, or disputes arising because of your stock trespassing, please email the team at admin@rurallaw.co.nz.