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Sunday 16 December 2018

Legal advice: My neighbours cattle have destroyed the road with muck - What can I do?

 

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'Fear of bulls is not misplaced'

Theresa Murphy

Q We have a farmhouse a short distance from a public road that is used by a few families who live there.

One farmer who lives on his farm nearby brings his cattle past our house every summer as he owns land on both sides of the road near our house.

His cattle mess the road daily, and if it rains the road becomes very dirty - it is so bad that I refuse to drive my car up as it gets cow dung all over it.

We have neighbours who like to walk the road daily with their dogs but won't walk when this is going on, mostly during the summer months.

The farmer often has a bull with the cows, and we are naturally all very nervous to walk up or down for fear of the bull being present.

The road runs between his land so I am wondering if it is it his responsibility to fence both sides of the road? There is currently no fencing so the cattle and bull just cross over and back daily.

Is there any law against his having a bull on a public road?

A The weather is hot and tempers as well as temperatures often rise with issues like this in the countryside.

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Although farmers are often considered to be the guardians of the countryside, they can also become a source of great annoyance when their farming practices impact on the day to day life of neighbours and motorists.

Your query raises several issues, and I will try deal with them one by one.

Dangerous animals

Fear of bulls is not misplaced - there have been a number of serious incidents involving them throughout the country.

Herd owners who keep bulls should exercise the greatest of caution when it comes to the handling of these animals and the means used to secure them.

In the case of tame or domestic animal - which include all farm animals bar dogs - the owner will only be liable for damage caused if the animal has a 'mischievous' tendency.

'Mischievous' was explained by the court in a case where a sow attacked a cow.

The cow died from the injuries it received.

It was decided that the sow had mischievous tendencies as its owner was aware that the sow had attacked and killed cockerels previously.

Other tendencies like biting, kicking, goring and jumping on children are treated the same way. It is enough that the owner has simply heard about the mischievous tendency to be held liable.

In this case, it is possible that the bull could be treated as if it were a dangerous animal, most likely depending on the breed and on its own tendencies

The bull's docility rating would likely be considered here. If the court were to consider the bull to be a 'wild' animal then these animals are kept at the owner's risk; and if they cause any damage, the owner is responsible.

The legal rules which cover liability for damage and injuries caused by animals are unusual in that they impose a 'strict liability' on the owner in many instances.

This means that the owner has no defence against a claim made by an affected person and may have to pay compensation whether intention is proved or not.

Nuisance

The courts have made it clear that owners of animals causing a nuisance to a neighbour are again liable. Examples include animals that are causing complaints because of noise or smell.

One unfortunate case featured a bee-keeper who kept 20 bee-hives near his neighbour's hay shed until they swarmed and attacked the neighbour's horse.

Landowners can use their land 'reasonably' but should bear in mind the effect that their animals may have on neighbours. What is 'reasonable'?

The court, for example, may look at the size of the field to determine whether there are unreasonable numbers of animals being kept on the land or in this case, they may look at the number of animals being moved and whether there is another route that the farmer could take to minimise the impact of the moving of the animals on neighbours.

Requirement to fence/prevent straying animals

The old rule that animals' owners were not liable for damage and injury caused by those that stray out on the road no longer applies.

Instead, the owner must take reasonable care that damage is not caused by an animal straying onto the public road. So landowners need to ensure that their land is properly fenced.

An exception to this rule is land where fencing is not customary, such as upland commonage.

The terms and conditions of the EU agriculture schemes like the Basic Payment Scheme dictate the need for fencing.

Driving cattle on the public road

If cattle cause damage while they are being driven on the public road, the owner will only be liable for the damage caused if they are in some way negligent in the course of driving the cattle; this includes bulls.

Negligence in this case might be something like driving too many cattle at once or failing to have adequate help present to control the animals.

Or if an animal, like a bull, is known to have mischievous or dangerous tendencies then the threshold for care taken by the farmer in the course of moving the animal would likely be higher.

While these may seem like thorny issues it is important that land and property owners exercise tolerance to farmers who have a sometimes difficult job to do and play a huge role in the upkeep of the countryside.

At the same time farmers should keep in mind that, especially during the summer, the countryside is enjoyed by many for holidaying and try to keep disruption to a minimum.

This article is a general guide. You should seek professional advice in relation to your individual circumstances.

Theresa Murphy is a barrister based in Ardrahan, Co. Galway.

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