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AGO 1951 No. 139 - September 27, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

HERD ON STOCK RESTRICTION DISTRICTS ‑- ANIMALS ‑- FENCE MAINTENANCE AS CONDITION TO LIABILITY ‑- TRESPASS, STOCK

The owner of trespassing stock is liable for damaging nonfenced property in a stock restriction area.

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                                                              September 27, 1951

Honorable R. A. Hensel
Douglas County Prosecuting Attorney
Waterville, Washington                                                                                                              Cite as:  AGO 51-53 No. 139

Dear Sir:

            You request our opinion on

            The liability of the owner of stock who damage nonfenced property in a stock restriction district.

            We conclude the owner of such stock is liable.

                                                                     ANALYSIS

            Rem. Rev. Stat. § 3068 et seq. (See P. and 1945 Supps.), permits county commissioners subsequent and pursuant to petition, notice, and hearing to create and define areas within the county wherein stock is prohibited from running at large.  These are variously termed "stock restriction" or "herd" districts.  Violations are punishable by a fine of not less than two and no more than ten dollars.  Rem. Rev. Stat. § 3071.

            Rem. Rev. Stat. § 5441 et seq., defines "lawful" fences and provides a cause of action against the owner of trespassing animals breaking through such fences.  Subsequent sections provide for the division of building and maintenance costs of boundary and partition fences when the non-builder's property will be enclosed.

             [[Orig. Op. Page 2]]

            Rem. Rev. Stat. § 3090 permits persons whose land is either (1) enclosed by a lawful fence,or (2) situated in a stock restriction district, to retain the animals damaging their property until the damage is paid by the owner.  This is primarily a remedial statute.  Rem. Rev. Stat. §§ 3093 and 5443 appear designed, by their complete coverage, to preclude the common law strict accountability.  See Prosser on Torts 433; 2 Am.Jur. 768-733, Animals §§ 108-111.

            The above statutes are consistent and should be construed together.  We therefore conclude:

            (1) Statutory liability for stock trespasses in non-restricted [[*sic (nonrestricted)]]areas is conditioned upon the erection of lawful fences;

            (2) Within stock restriction districts, a fence is not a condition to such liability since the burden is there upon the owner of the stock to prevent their trespass, otherwise stock restriction areas would serve little purpose; and

            (3) The provisions for division of building and maintenance fence costs of boundary and partition fence applies whether or not the land is within the stock restriction district.

Very truly yours,

SMITH TROY
Attorney General

JENNINGS P. FELIX
Assistant Attorney General

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