Please read the disclaimer before perusing the following article.
written 1996, published in Beef in B.C. November/December 96
Every rancher in BC whose range backs onto unfenced private land, knows what a troublesome situation it can be.
BC’s statutes contain law about this situation.
First, the Trespass Act says that adjacent owners have to share fence costs BUT that provision does not apply to the Provincial government. The Crown will not participate in the cost of fencing the crown/private land boundary. So the cost of fencing must be borne by the private land owner.
The Livestock Act says first, that (subject to the Range Act and an established bull control area) a livestock owner may allow his livestock to be at large in a livestock district. Second, the Livestock Act says that where livestock stray onto unenclosed land outside a pound district, the land owner is not supposed to start an action for trespass. Unenclosed land is land which is not surrounded by “a natural or man-made barrier sufficient to exclude or contain livestock”.
The rule has been generally stated to be:
Ministry of Forests range tenures do not require the tenure holder to fence the range boundary. If this policy were to change, the effect on the cattle industry would be enormous. Few ranchers would be able to contemplate the cost of fencing their range boundaries where they border deeded land.
This is a Provincial Court, Small Claims Division, decision. The judge was Judge D.L. Sperry. The case is in the Grand Forks area. The reasons for decision were issued on September 16, 1996.
Provincial Court is the most junior level of court. In legal theory, a Provincial Court judge is bound to follow the decisions of the higher courts, which are the BC Supreme Court, BC Court of Appeal, and Supreme Court of Canada. But decisions of Provincial Court judges are not binding on judges of the higher courts when they are considering the same issue (but in a different case) as was decided at the Provincial Court level.
Based on the judge’s description of the facts in his decision, this is a classic situation. Lac Holdings Ltd. had cattle at large under its range tenure, on unfenced Crown land. Coughlan owned one quarter section of adjacent unfenced private land. He could not afford to fence his property.
When Lac Holdings livestock came on Coughlan’s property, Lac Holdings removed the cattle on “more than one occasion” but the cattle kept returning. As well, according to Judge Sperry, Coughlan made “attempts to dissuade the Lac Holdings cattle from his land”. Coughlan grew frustrated when the cattle kept returning, and shot the Hereford bull with the Lac Holdings cattle in the neck with a shotgun.
Judge Sperry decided that there were four issues for him to decide. The first two issues were whether Coughlan was liable to Lac Holdings for shooting the bull, and if so, for how much. The second two issues are the ones of particular concern to the ranching industry. They were whether Lac Holdings was liable to Coughlan for trespass to Coughlan’s land, and if so, for how much.
The first two issues were decided in favour of Lac Holdings. Judge Sperry said, on the basis of previously decided cases, that a person killing a bull on his property must establish on a balance of probabilities that he acted reasonably for his own safety or protection. “Frustration and what many would say was justifiable anger do not go towards establishing that the only reasonable course of action was shooting the bull.”. He awarded damages of $1,880 for range riding, veterinary costs, and 25 days of keep for the bull at nearby ranch.
The problem with the case comes with the decision on the second two issues. Judge Sperry decided that Coughlan’s counter-claim was for damages for trespass. “Lac Holdings knew where Coughlan’s land was, knew Coughlan didn’t want Lac’s cattle on his land and failed to keep the cattle off Coughlan’s land. These cattle ate Coughlan’s fodder, drank his water and otherwise caused him grief. His claim for $500 as damages for the trespass by the cattle is reasonable and is awarded.”.
Judging from the tone of Judge Sperry’s judgement, he seems to think that the situation is funny—he even names the bull “Harry”. He is sympathetic with Coughlan and not at all with Lac Holdings—nor with the applicable law.
I understand from a Ministry of Forests staff person who attended the trial, that the Livestock Act provisions were identified to Judge Sperry. If that is the case, his decision is all the more wrong.
The case is going to cause the public perception that a private landowner adjacent to unfenced Crown land can succeed in an action for trespass against the livestock owner. If an action for trespass is started, the livestock owner should immediately bring in the provisions of the Livestock Act and argue that the action itself should not be allowed to proceed.
Lac Holdings may decide to appeal the decision. The appeal comes at a significant cost, because it is done by way of a new trial in Supreme Court.
One good thing is that Judge Sperry did not specifically deal with the Livestock Act provisions. The case DOES NOT overrule the Livestock Act. Anyone reading the case will assume that Judge Sperry was simply not aware of the Livestock Act provisions.
New, clearer legislation is the preferred solution to the problem of unfenced private land adjacent to Crown range.
BC Cattlemen’s Association has been working on the issue for some time, through the Ministry of Agriculture as well as through Municipal Affairs with respect to new subdivisions.
Perhaps the Lac Holdings case will provide the impetus for government to bring in appropriate legislation.