Farm Law for Operators and Landowners

Fence Law and

Livestock Liability

Andrew Branan, JD

Assistant Extension Professor

Department of Agriculture and Resource Economics

North Carolina State University

rabrana2@ncsu.edu

Fence Law – Criminal Penalty

• North Carolina Livestock Law
• NCGS 68-15 et seq
• “The word ‘livestock’ in this Chapter shall include, but shall not be limited to, equine animals, bovine animals, sheep, goats, llamas, and swine”
• Allowing to run free is Class 1 Misdemeanor
• “If any person shall permit any turkeys, geese, chickens, ducks or other domestic fowls to run at large on the lands of any other person while such lands are under cultivation in any kind of grain or feedstuff or while being used for gardens or ornamental purposes, after having received actual or constructive notice of such running at large, he shall be guilty of a Class 3 misdemeanor.”

​

Fence Removal

• Fence Removal Liability
• NCGS §14-144
• Your land or land in dispute?
• “[unlawful to] willfully burn, destroy, pull down, injure or remove any fence, wall or other enclosure, or any part thereof, surrounding or about any yard, garden, cultivated field or pasture”
• Damage < $5000 = Class 2 Misdemeanor
• Damage > $5000 = Class 1 Felony

Fence Removal at End of Tenancy

• NC verbal Farm Tenancy “year to year” protected by NCGS 42-23
• Farmer may gather crops by end of year
• If no termination, tenancy renews for a like term (year)
• Applies to livestock? No cases, but crop is arguably grass
• If land is sold during tenancy, apportion rent between ‘lessor’ (the seller who gave farming permission) and buyer
• Likely no renewal by law in case of sales or death of owner
• Tenant may remove his/her fences at close of tenancy
• Must repair any damage
• Farm Law article

​

Gates on Easements

• Basic Terminology
• Parcel that benefits from easement = dominant estate
• Parcel which easement crosses = servient estate
• Standard: Servient estate may make reasonable use of the land over which easement crosses (i.e. they own it)
• NC Standard for Gate erected by Servient Estate:
• [1] “when necessary to the reasonable enjoyment of his estate” and
• [2] gate does not materially impair or unreasonably interfere with the use of the lane as a private way for the purposes for which it has theretofore been used (i.e. by dominant estate)
• Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906 (1944)
• May not create a gate when creation instrument (i.e. deed) declares that easement must remain “open”
• (earlier Hiatt case, article here)

Recent Gate Case: Taylor v. Hiatt, 2021-NCCOA-503 (September 21, 2021)�

• Taylor v. Hiatt, 2021-NCCOA-503 (September 21, 2021)
• Taylors own horses, put up gate as part of fencing system across an easement benefiting another tract
• Legal standard: a gate is considered reasonable for containing grazing animals (i.e. use and enjoyment) (Chesson)
• However, “unreasonable interference” facts:
• The key boxes, where a code had to be entered to open the gate, were located well off the road, requiring Defendants to get out of their car to enter the code.
• Plaintiffs refused to provide Defendants a remote control.
• The keypads were temperamental in that a single mistype of the code sometimes locked Defendants out from trying again.
• The gates would sometimes not function in the cold weather.
• Plaintiffs’ horses sometimes congregated around the gates, making it difficult for Defendants to open the gates while keeping the horses from escaping.

​

Liability for Injury: Mosaic Law

"If an ox gore a man or a woman that they die; then the ox shall be surely stoned and his flesh shall not be eaten, but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death. If there be laid on him a sum of money, then he shall give for the ransom of his life whatsoever is laid upon him." (Exodus 21:28-30)

- Banks v. Maxwell, 205 N.C. 233, 171 S.E. 70 (N.C., 1933)

Escaped Livestock Liability - Civil

• Not Strict Liability
• Liability is based on Negligence standard (“reasonable and prudent”)
• A fact-based inquiry by court: “did the owner exercise reasonable care as one bound to confine livestock”
• Cases:
• If an animal is repeatedly found running at large, the consent and knowledge of the owner may be inferred. Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953)
• “It is the legal duty of a person having charge of animals to exercise ordinary care and the foresight of a prudent person in keeping them in restraint.” Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10 (1940)
• Evidence showed that the defendant property owner had removed barbed wire from his fencing with the intention of later replacing it with electrified wire, but never did the installation... issues of fact remained as to whether he “exercised ordinary care and the foresight of a prudent person in keeping the horse in restraint” because the horses were, in fact, able to push over the fence (no prior escapes therefore irrelevant) Bynum v. Whitley, 656 S.E.2d 16 (N.C. App. 2008)

Negligence Standard – Escaped Livestock

• Liability “rests upon the question whether the keeper is guilty (sic) of negligence in permitting them to escape.
• Legal duty standard is “ordinary care and the foresight of a prudent person in keeping them in restraint.”
• “[P]laintiff must present evidence sufficient to indicate that defendant's animals ‘were at large with his knowledge and consent, or at his will, or that their escape was due to any negligence on his part.’”
• Wilmoth v. Hemric, 768 S.E.2d 570 (N.C. App., 2014)
• Evidence examples
• failure to maintain an adequate fence
• leaving a gate open
• counting the cows too infrequently
• Other?

​

Impoundment and Abandonment

• Any person may impound stray cattle
• Due reasonable costs of impoundment
• Owner known: must contact
• Owner unknown: inform Sheriff of details
• Animal deemed abandoned when:
• it is placed in the custody of any other person for treatment, boarding, or care; and
• the owner of the livestock does not retake custody of the animal within two months after the last day the owner paid a fee to the custodian for the treatment, boarding, or care of the livestock; and
• the custodian has made reasonable attempts to collect any past-due fees during the two-month period.
• May sell or dispose after 2 months

Injury by Animals On-farm

• Standards of Duty
• Trespasser = no duty (exceptions)
• Invitee = negligence standard
• Liability “Immunity” by Statute (NCGS 99E-7)
• Warns of “inherent risk”
• must plead the affirmative defense of assumption of the risk of the farm animal activity
• Agritourism, rodeos, training, boarding, veternarians
• Must post signage (language in statute)
• Does not cover products liability

“Inherent Risk” Defined (§99E-6[9]) (Livestock statute)

• The possibility of a farm animal behaving in ways that may result in injury, harm, or death to persons on or around them.
• The unpredictability of a farm animal's reaction to such things as sounds, sudden movement, unfamiliar objects, persons, or other animals.
• The risk of contracting an illness due to coming into physical contact with animals, animal feed, animal waste, or surfaces that have been in contact with animal waste.
• Inherent risks of farm animal activities does not include a collision or accident involving a motor vehicle.

Exceptions to §99E Liability Limitation

(Equine)

(1) Provides the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such faulty equipment or tack proximately caused the injury, damage, or death. or

(2) Provides the equine [or farm animal] and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity or to safely manage the particular equine. or

(3) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission proximately caused the injury, damage, or death.

Exceptions in 99E-30 (Agritourism)

(b) Nothing in subsection (a) of this section prevents or limits the liability of an agritourism professional if the agritourism professional does any one or more of the following:

(1) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission proximately causes injury, damage, or death to the participant.

(2) Has actual knowledge or reasonably should have known of an existing dangerous condition on the land, facilities, or equipment used in the activity or the dangerous propensity of a particular animal used in such activity and does not make the danger known to the participant, and the danger proximately causes injury, damage, or death to the participant.

(c) Nothing in subsection (a) of this section prevents or limits the liability of an agritourism professional under liability provisions as set forth in Chapter 99B of the General Statutes.

(d) Any limitation on legal liability afforded by this section to an agritourism professional is in addition to any other limitations of legal liability otherwise provided by law.

​

Liability Standards and Evidence�(On Farm Injury)

• Owner or keeper of vicious animal has strict liability
• Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297 (1967)
• Landlord for tenant owner of vicious animal may be found negligent
• Holcomb v. Colonial Associates, LLC, 597 S.E.2d 710, 358 N.C. 501 (N.C., 2004)
• “The prior behavior of an animal is admissible to show both the animal's vicious propensities and the owner's actual or constructive knowledge of such propensities, even though the behavior falls short of actual injury.”
• “[T]he animal's reputation, while inadmissible to show directly the animal's vicious propensities, is admissible to show the owner's knowledge of the alleged propensity and to corroborate the testimony of those who have sworn to the animal's viciousness.”
• Williams v. Tysinger, 388 S.E.2d 616, 97 N.C.App. 438 (N.C. App., 1990)

​

​

Signage Required

• The signs … shall be placed in a clearly visible location on or near stables, corrals, arenas, or other farm animal facilities where the farm animal professional or the farm animal activity sponsor conducts animal activities.

"WARNING Under North Carolina law, a farm animal activity sponsor or farm animal professional is not liable for an injury to or the death of a participant in farm animal activities resulting exclusively from the inherent risks of farm animal activities. Chapter 99E of the North Carolina General Statutes."

Trespass

• §38B-2. General rule. A possessor of land, including an owner, lessee, or other occupant, does not owe a duty of care to a trespasser and is not subject to liability for any injury to a trespasser.
• §38B-3. Exceptions
• Intentional harm = “willful or wanton”
• Example: thin wire across field entrance (to repel ATV)
• May use reasonable force to repel a crime
• Harm to Children (<14) (attractive nuisance doctrine)
• reason to know that children were likely to trespass and
• owner knew of unreasonable risk of serious bodily injury or death and
• child did not appreciate the risk and
• utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk discover the condition or realize the risk involved and
• possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child.

Nuisance

• Scenario: Plan to take a loan to build a chicken house, neighbor objects, threatens to sue
• Must unreasonably interfere with neighbor’s use and quiet enjoyment
• Right to Farm Law
• 2018 updated standing and damages
• Not applicable to negligence, trespass, personal injury, strict liability, other torts
• Mandatory Mediation (NCGS §7A-38.3)
• Pre-litigation requirement unless waived
• Voluntary Agriculture District (2020 update)
• buffer must show ½ mile from VAD

​

New Right to Farm (§106-701) � (all must apply)

(1) The plaintiff is a legal possessor of the real property affected by the conditions alleged to be a nuisance. 

(2) The real property affected by the conditions alleged to be a nuisance is located within one half-mile of the source of the activity or structure alleged to be a nuisance. 

(3) The action is filed within one year of the establishment of the agricultural or forestry operation or within one year of the operation undergoing a fundamental change. 

​

“Fundamental Change” is not:

• A change in ownership or size. 
• An interruption of farming for a period of no more than three years. 
• Participation in a government-sponsored agricultural program. 
• Employment of new technology. 
• A change in the type of agricultural or forestry product produced. 
• Grazing cattle to poultry house?
• Forestry harvest cleared for poultry house?

​

Nuisance Damages (§106-702) 

• measured by the reduction in the fair market value of the plaintiff's property caused by the nuisance, but not to exceed the fair market value of the property 
• (new) “A plaintiff may not recover punitive damages … from an agricultural or forestry operation that has not been subject to a criminal conviction or a civil enforcement action taken by a State or federal environmental regulatory agency pursuant to a notice of violation for the conduct alleged to be the source of the nuisance within the three years prior to the first act on which the nuisance action is based.”

​

Bona Fide Farm Status - Zoning

• Exemption from County zoning restrictions as to farm activities
• Not an exception to non-farm activities (i.e. welding service?, etc)
• Not an exemption from NC Building Code requirements
• New statute all but requires issuing permit for all farm buildings
• Safe Harbors NCGS §153A-340 §160D-903
• A farm sales tax exemption certificate issued by the Department of Revenue.
• A copy of the property tax listing showing that the property is eligible for participation in the present use value program pursuant to G.S. 105-277.3.
• A copy of the farm owner's or operator's Schedule F from the owner's or operator's most recent federal income tax return.
• A forest management plan
• FSA Farm Numbers no longer qualify

​

Bona Fide Farm - Agritourism

• A building or structure that is used for agritourism is a bona fide farm purpose if the building or structure is located on a property that (i) is owned by a person who holds a qualifying farmer sales tax exemption certificate from the Department of Revenue pursuant to G.S. 105-164.13E(a) or (ii) is enrolled in the present-use value program pursuant to G.S. 105-277.3. Failure to maintain the requirements of this subsection for a period of three years after the date the building or structure was originally classified as a bona fide purpose pursuant to this subdivision shall subject the building or structure to applicable zoning and development regulation ordinances adopted by a county pursuant to subsection (a) of this section in effect on the date the property no longer meets the requirements of this subsection.
• For purposes of this section, "agritourism" means any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-your-own activities, or natural activities and attractions. A building or structure used for agritourism includes any building or structure used for public or private events, including, but not limited to, weddings, receptions, meetings, demonstrations of farm activities, meals, and other events that are taking place on the farm because of its farm or rural setting.

THANKS FOR INVITING ME!

Robert “Andrew” Branan

Assistant Extension Professor

Department of Agriculture and Resource Economics

North Carolina State University

Campus Box 8109

4336 Nelson Hall

Raleigh, NC 27695

rabrana2@ncsu.edu

919 515 4670

​