November 2006

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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When cattle escape onto a high speed, limited access four lane highway, who is responsible for the resulting damage?

In a recent Alberta case, a tractor trailer unit carrying oilfield equipment was travelling on a snow-covered provincial highway at 3 a.m. with restricted visibility when the truck struck a cow owned by the defendant causing substantial damage to the truck. At the time, a herd of the defendant’s cows had escaped through an open gate and were all over the highway. The owner of the truck sued the defendant for repair costs alleging both negligence and liability for cattle trespass.

In considering the issue of the defendant’s possible liability, the court commented:

“The characterization which a court puts on a set of facts often dictates the outcome. Never more so than in this case where the plaintiff’s truck received extensive damage when it ran into one of the defendant’s cows in a blinding snowstorm in the middle of the night on Highway 2 south of Nanton, Alberta.

Two characterizations which might be placed on the facts of this case could lead to completely opposite outcomes. If this case is characterized as a classic case of cattle trespass, liability might be found even in the absence of fault on the part of the defendant rancher, and considerations of contributory negligence on the part of the plaintiff driver may or may not be relevant. On the other hand, if the facts are characterized as being those which give rise to a claim in negligence, then liability may not be found absent fault on the part of the rancher; and considerations of contributory negligence on the part of the plaintiff driver are not only relevant, they may be determinative.”

With respect to possible negligence of the defendant farmer, the court determined that the defendant’s cattle escaped, not because of any inadequacies in his fences or gates, or failure to conduct adequate inspection, but because some unknown third party had opened the gate and failed to close it. In these circumstances, the court held:

“… to the extent that the plaintiff’s claim is based in negligence, I believe it must fail because I don’t believe the mere presence of the defendant’s cows on the highway is sufficient to establish negligence. Even if the presence of the cattle on the highway was enough to establish negligence, the plaintiff had the additional problem of its driver admitting that he couldn’t stop in the distance he could see. Over-driving one’s headlights has been found to preclude or reduce recovery by plaintiffs who hit cattle on the highway.”

The court then continued to consider the potential liability of the defendant for cattle trespass. The court stated:

“The text books tell us that a defendant whose cattle strays onto his neighbour’s land commits a trespass. And where that straying causes harm, the defendant is liable for that harm without proof of negligence … if a rancher’s cattle stray into a neighbour’s field, the rancher is liable for the neighbour’s crop loss. The niceties of negligence are ignored. It doesn’t matter how his cattle got into his neighbour’s field, the rancher is liable for the crops they ate or trampled or the prize cow that was impregnated.”

However, the court determined that a private individual such as the plaintiff can have no right of action for trespass upon a public highway owned by the provincial Crown. The court held:

“… trespass is a wrong against the possession of land, not necessarily against ownership. To succeed, the plaintiff must show that he was in possession of the land allegedly being trespassed upon. Could the plaintiff in the case at bar be considered to be in possession of the land? Clearly, the Crown owned the highway right of way. The plaintiff may have been in an invitee or licencee of the Crown. But would that put him in possession? I think not. Highways are public rights of way …

The plaintiff had no better right to utilize this road than the defendant had. But the defendant wasn’t a user of the highway in this case. He was the owner of live chattels which inadvertently got out onto the road and caused an accident and attendant damage.

… But can persons in the position of the plaintiff in this case maintain such an action in trespass? I think not, although I’m not terribly comfortable with my conclusion or the rationale therefore. The law is simply not clear. However, the reason I don’t believe the plaintiff can successfully maintain a cattle trespass action is that it lacks possession of the land upon which the ‘trespass’ has taken place. Ownership, control, and management of the highway remains in the Crown. The motorist, the plaintiff’s driver, is simply a user of the public right of way. I hesitate to say he’s a licencee or invitee of the Crown because it may be that even the Crown could not exclude a legitimate user of a public right of way. But either way, licencee or user, I don’t believe the plaintiff can maintain a trespass action.”

In the result, the court determined that the plaintiff’s claims both in negligence and cattle trespass must fail and the action was dismissed. However, it is clear from this judgment that owners of livestock which escape onto public highways may be liable in negligence for the damage which results. To successfully defend such a claim, livestock owners must be in a position to demonstrate that they have taken reasonable measures to prevent the livestock from escaping or remaining upon the highway.