2-38-101 Taking up animals.
Every citizen, a resident householder in any county in this state, on finding any horse, mare, mule, jack, or jenny or any domesticated cattle, hogs, or sheep, of any age running at large, the owner of which is not known, may take the animal into his custody.
2-38-102 Range animals.
No person shall take up any domesticated cattle, hogs, or sheep running in the range, unless they shall be found within his enclosure, from April 1 until November 1.
2-38-103 Place of taking.
No person shall take up any stray animal, except on his own farm or in his immediate vicinity.
2-38-104 Duty and rights of taker-up or impounder.
(a)(1) Every person taking up any stray animal shall immediately, if the animal is marked or branded, proceed to the office of the clerk of the county court of the county in which the animal is taken up and shall cause the clerk to examine the State Brand Book.
(2) If it is found that the mark or brand upon the animal taken up is entered upon the book, the taker-up or impounder of the animal shall at once notify the owner of the mark or brand, of his having taken up the animal, giving an exact description thereof.
(3)(A) The taker-up or impounder of an animal shall receive a reasonable compensation for his trouble.
(B) If the animal is taken from the range where the stock of the owner is accustomed to be kept, the taker-up or impounder shall receive nothing.
(b) No person shall use, work, or exercise any acts of ownership over any animal taken up by him until he shall have given notice thereof to the county court clerk. However, he may ride the animal to the county court for the purpose of giving the notice to the clerk.
2-38-105 Certificate of examination.
Upon the taker-up of any animal causing examination of the State Brand Book to be made by the county clerk as prescribed in § 2-38-104, the county clerk shall give to the impounder a certificate of the examination having been made, setting out in the certificate the description of the animal and the marks and brands, or either thereof, and the impounder shall pay the clerk twenty-five cents (25¢ ) as a fee for the certificate.
2-38-106 Posting description of animal.
(a) Upon failure to find any record of the mark or brand of the animal taken up or when the person in whose name the mark or brand is found recorded proves not to be the owner of the animal, the taker-up or impounder of the animal shall put or cause to be put up posters in three (3) of the most public places in the township or neighborhood where the animal is taken up, giving a full detailed description of the animal, stating the marks, age, color, and value of the animal. At the same time, the taker-up or impounder shall deliver to the clerk of the county court a copy of the poster, and the clerk shall at once enter a full copy of the poster in a book to be kept by him for that purpose and shall set up the poster upon the courthouse door.
(b) If, at the expiration of ten (10) days from the date of the poster, the animal has not been proved away, it shall be the duty of the impounder to give notice to the nearest justice of the peace of the county of the taking up of the animal. The impounder shall, at the time of giving notice, file with the justice of the peace the certificate of the clerk of the county court of the examination of the record of marks and brands if the animal taken up is marked or branded.
(c) If the animal should be proved away as provided in this section, it shall be the duty of the person proving away the animal to pay a reasonable charge for feeding and advertising the animal if the animal has not been used by the person taking it up. In this case no charge shall be made for feeding and advertising.
2-38-107 Oath of taker-up.
In addition to the notice required by law to be given to a county clerk of taking up of strays, it shall be the duty of the taker-up, at the time of giving the notice, to take also an oath before the clerk that the stray was taken up on the farm of the person, or in his immediate vicinity, and that he had no agency in bringing the stray into the vicinity.
2-38-108 Certificate of appraisement.
(a) Every justice of the peace, on receiving notice of any animal being taken up, shall forthwith appoint three (3) appraisers, who shall be citizen householders of the county, to appraise and describe the animal.
(b)(1) The appraisers appointed shall, as soon as practicable, proceed to view the animal and make out a detailed description, stating the marks, brands, age, color, stature, and value thereof, which description and valuation shall be signed by the appraisers and sworn to before the justice appointing them.
(2) For their services, they shall each receive the sum of fifty cents (50¢ ).
(c) The description and valuation so sworn to shall be delivered by the appraisers to the justice of the peace, who shall deliver to the person taking up the animal a copy thereof.
(d) The original of the certificate of appraisement of the justice shall, within ten (10) days, be deposited in the office of the clerk of the county court of his county.
(e) The justice, at the time of depositing the certificate of appraisement with the clerk for record, shall also file with the clerk the bond required by this subchapter, which bond shall be kept by the clerk.
2-38-109 Bond of taker-up.
(a) Every person taking up an animal as a stray shall, at the time of the appraisement, enter into bond to the State of Arkansas, with sufficient security to be approved by the justice of the peace who appoints the appraisers, in the value of the animal. The bond shall be conditioned that, if the owner of the animal within one (1) year from the date shall appear and prove his property in the animal so taken up, then the taker-up will deliver the animal or, if the owner should fail to prove his property therein within one (1) year, conditioned that he, the obligor, will pay into the county treasury one-half (1/2) of the appraised value, deducting all legal expenses of the animal, stating the amount of the appraisement.
(b) If the animal is a hog, the conditions of the bond shall be that if the owner of the animal, within three (3) months from the date, shall appear and prove his property in the animal so taken up then he will deliver the animal or that if the owner should fail to prove his property therein within three (3) months, then he, the obligor, will pay into the county treasury one-half (1/2) of the appraised value, deducting all legal expenses of the animal.
It shall be the duty of every clerk of the county court to keep a book in which he shall record all descriptions and valuations of animals taken. He shall also note on all bonds required to be deposited in his office under the provisions of this subchapter the time of filing them and keep the bonds safely for the use of the county.
2-38-111 Advertisements to be posted.
(a) The person taking up any animal under the provisions of this subchapter shall immediately make out, from the copy of the appraisement delivered to him by the justice of the peace, four (4) advertisements and put them up in the most public places in his township and county.
(b) If any person shall fail to advertise any stray according to laws in force, he shall be deemed guilty of a misdemeanor. Upon conviction, an offender shall be fined in any sum not less than five dollars ($5.00) nor more than fifty dollars ($50.00), to be recovered by indictment or information in the county where the stray may have been taken up.
2-38-112 Publication in addition to posting.
If the animal taken up is a horse, mare, mule, jack, or jenny, the taker-up shall cause a copy of the description and appraisement to be inserted in some newspaper printed in the state for three (3) weeks if the animal is of the appraised value of at least twenty dollars ($20.00). Publication shall be commenced in the newspaper within one (1) month after appraisement. This shall be done in addition to the advertisement required by this subchapter.
2-38-113 Payment of expenses.
If the owner of any stray horse, mare, mule, jack, or jenny does not prove the stray according to law within twenty (20) days from the time the animal was taken up, the person taking it up shall pay the county clerk all fees, the necessary postage, and the price of the advertisement. The clerk shall immediately transmit, by mail or otherwise, to the printer a copy of the appraisement of the stray and shall account to the printer for all money received by him for printing.
2-38-114 Stray pen -- Exhibition.
(a) It shall be the duty of the county court, at the expense of the county, to provide a pound lot or stray pen sufficient to contain all stray horses, mares, mules, jacks, or jennies which may be taken up in their respective counties. The stray pen shall be within one-half (1/2) mile of the courthouse.
(b) On the first day of the next term of the circuit court of his county, every person taking up any horse, mare, mule, jack, or jenny shall take the animal to the stray pen of his county and keep it there, subject to the inspection of all persons from 11:00 a.m. until 3:00 p.m. of each day.
2-38-115 Reclamation by owner.
(a) Within one (1) year from the time of the filing of the bond required by law, if the owner of any stray animal shall appear and claim it, he shall notify the taker-up; and the owner shall establish his claim to the animal before some justice of the peace of the county by such evidence as shall be satisfactory to the justice.
(b) Upon the justice being satisfied of the ownership of the animal taken up, he shall make an order in writing requiring the taker-up of the animal to deliver it to the owner when he pays the legal costs that have accrued thereon.
(c)(1) The person having the animal proved and required to be given up by the justice's order shall deliver it to the owner on receiving the amount of cost legally due and shall take a receipt endorsed on the justice's order for the animal.
(2) The order and receipt shall be filed with the clerk of the county court of the proper county, upon the filing of which, the bond shall be deemed to be cancelled.
2-38-116 Refusal to deliver.
If any person who has taken up any animal shall refuse to deliver it to the owner on his having complied with the requirements of this subchapter, as respects proving ownership of the animal, the owner shall have a right of civil action. If the owner recovers in an action, he shall also recover double costs
2-38-117 Compensation for keeping strays.
(a) No person shall charge anything for keeping any horse, mare, mule, jack, or jenny which may be worked or ridden while in the possession of the taker-up.
(b) For the keeping of other animals, or the named animals if not worked or ridden, the person taking them up shall be entitled to a reasonable compensation to be adjudged by the justice of the peace before whom the owner proves his right of property.
2-38-118 No premature disposition of strays.
(a) No person taking up any animal shall sell, exchange, or dispose of it in any manner nor kill any domesticated cattle, hogs, or sheep until after the expiration of the time that the owner has the right to prove his property in them.
(b) Any person violating the provisions of subsection (a) of this section shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined in any sum not less than half nor more than double appraised value of the stray so taken up, to be recovered in the county where the stray may have been taken up.
2-38-119 Liability for death or escape of animals.
If any stray animals die or escape from the possession of the taker-up before the owner shall establish his right thereto, and if the death or escape is without the fault of the person having the lawful possession thereof, he shall not be liable for it.
2-38-120 Forfeiture of right to animal.
If the owner of any stray animal shall not appear and prove his property therein within one (1) year after the time of setting up the copies of the valuation and description of the animal and the filing of the bond required, he shall forfeit his right to the animal and the property shall be vested in the taker-up of it.
2-38-121 Payment and filing required for unclaimed strays.
(a)(1) Every person who shall take up a stray animal which shall not be reclaimed by the owner within one (1) year shall pay into the county treasury of the county in which the stray was taken up one-half (1/2) of the residue after deducting all legal expenses from the appraised value of the animal and shall file the county treasurer's receipt for it in the office of the county clerk.
(2)(A) The county clerk shall charge the county treasurer with all such funds as shall be paid into the treasury; and
(B) These funds shall be apportioned among the several districts of the county as other funds are apportioned.
(b) After the term of one (1) year from the taking up of any animal, if the order of the justice of the peace requiring the taker-up of the animal to return the animal to the owner, with the owner's receipt thereon, shall not be filed with the clerk, or the one-half (1/2) of the appraised value paid into the treasury, and the county treasurer's receipt filed with the clerk, the clerk shall issue a notice to the delinquent to appear at the next session of the county court for that county and show cause, if any he can, why judgment shall not be entered against him, in favor of the state, for the benefit of the county.
(c) The notice shall be delivered by the clerk to the sheriff and served by him on the person.
(d)(1) If no sufficient cause is shown, the court shall enter judgment against the delinquent for the amount due the county, with costs, and execution shall issue for it as in other cases.
(2) The cause shall be tried without the necessity of formal pleadings.
2-38-122 Judgment for costs.
If any person shall fail to file with the clerk of the county the treasurer's receipt or the receipt of the owner of the animal for which he executed his bond on taking it up, although he may have paid the amount due on the bond to the county treasurer or returned the animal in question to the proper owner, the court shall enter judgment against him for all costs.
2-38-201 Penalty for running at large.
(a)(1) If any seed horse or any unaltered mule or jack, over the age of two (2) years, is found running at large, the owner shall be fined three dollars ($3.00) for the first offense and not exceeding ten dollars ($10.00) for every subsequent offense, to be recovered by civil action in the name of any person who shall sue for the fine, one-half (1/2) to his own use and the other to the county's.
(2) The action may be prosecuted before any justice of the peace of the county where the offense is committed.
(b) The owner shall also be liable for all damages that may be sustained by the running at large of any seed horse, jack, or mule, to be recovered by a civil action before any court having jurisdiction thereof.
2-38-202 Right of person taking up.
(a)(1) Any person may take up any seed horse, mule, or jack found running at large and, if not claimed within two (2) days, may castrate him.
(2) For this service, he shall be entitled to recover from the owner of any horse, mule, or jack, three dollars ($3.00), which may be recovered in a civil action before any justice of the peace of the county.
(b) Castration shall be done in the usual manner, so that the life of the animal shall be endangered as little as possible.
2-38-203 Right to kill certain stock -- Notice.
If any horse, mule, or jack is running at large and cannot be taken up, he may be killed, if notice is first put up at the courthouse and at three (3) other of the most public places in the county, for ten (10) days, describing the color, marks, and brands, as nearly as practicable, of the animal and that he will be killed unless taken away and secured.
2-38-301 Running at large unlawful when prohibited.
(a) In all counties of this state where there has been or may be submitted to the people by initiative petition a proposed act prohibiting horses, mules, cattle, hogs, sheep, and goats, or any of them, from running at large in the county and at an election held pursuant thereto, the electors voting thereon have enacted or shall enact such an act, it shall be unlawful from the effective date of the act for any animals, at any time during the year, to run at large and enter in and upon the fields and lands of the county, either enclosed or unenclosed.
(b)(1) In every case of trespass by an animal described and prohibited by the initiated act, the owner of the animal shall be liable, for all damages it may do, to the person owning crops, to be established and recovered in a civil action.
(2) A lien shall exist against the animal in favor of the person whose crops may have been damaged or destroyed, and they may be sold under an order of the court rendering judgment for damages, to which shall be added any and all costs of taking up, feeding, and caring for the animal, and other costs.
2-38-302 Penalty for failing to take up trespassing animals.
(a)(1) Any owner of animals upon receiving notice either verbal or otherwise that they are at large and trespassing upon the land, premises, and crops of another person shall immediately take up the animals and thereafter confine them so that further depredations and damages shall be avoided.
(2)(A) If he shall fail, neglect, or refuse to take up animals, upon being notified his animals are running at large and trespassing, for twenty-four (24) hours after notification being given him, he shall be guilty of a misdemeanor and, upon conviction, shall be fined a sum not less than ten dollars ($10.00) nor more than fifty dollars ($50.00).
(B) Each day the animals continue to run at large shall constitute a separate offense.
(b) Where any initiated act, duly adopted by the electors as provided, prescribes penalties, the penalties of this section shall be cumulative and in addition thereto.
It is the purpose of this subchapter to provide for more effective enforcement of the prohibition against cattle, horses, mules, hogs, sheep, or goats being allowed to run at large along or on any public highway in the State of Arkansas in violation of § 5-62-122.
2-38-402 Duty to impound.
It shall be the duty of the Department of Arkansas State Police and the sheriffs of the respective counties to restrain and impound any cattle, horses, mules, hogs, sheep, or goats found running at large along or on any public highway in the State of Arkansas.
It shall be the duty of the county court of each county to provide an appropriate enclosure at the county farm or at some other place within the county for the impounding of cattle, horses, mules, hogs, sheep, or goats found running at large along or on any public highway in this state.
2-38-404 Delivery to enclosure.
(a) Any member of the Department of Arkansas State Police or any sheriff or deputy sheriff of any county who discovers or is advised of an animal running at large along or on any public highway shall arrange for the animal to be taken up and delivered to the enclosure provided by the county court in the county where the animal is at large.
(b) The cost of taking up and delivering the animal shall be borne by the county in which the animal is found running at large.
2-38-406 Reclaiming by owner.
(a) The owner of any animal impounded under the provisions of this subchapter shall be permitted at any time within thirty (30) days from the date of first publication of notice of the impounding of the animal to reclaim the animal upon the payment of all costs incurred by the county in connection with the taking up and delivery of the animal to the enclosure, the feeding and care of the animal while impounded, and the cost of publication of notice.
(b)(1) The animal shall be delivered to the owner if reclaimed in accordance with the provisions of this subchapter at the enclosure provided by the county court.
(2) All costs in connection with the removal of the animal from the enclosure shall be borne by the owner.
(c) The owner shall establish his claim to the animal before the sheriff by evidence as shall be satisfactory to the sheriff.
2-38-407 Sale of unclaimed animals.
If, at the expiration of thirty (30) days after notice was first posted, an animal found running at large along or on any public highway has not been claimed by its true owner, then it shall be the duty of the sheriff to sell the animal at public sale to the highest bidder after posting notice of sale in the courthouse for five (5) days.
2-38-408 Disposition of funds.
(a)(1) The county shall be entitled to one dollar ($1.00) per day for each animal found running at large along or on any public highway and impounded.
(2) The sum shall be paid by the claimant-owner, as provided in § 2-38- 406, or from the proceeds of the sale of the animal.
(b)(1) If there is a balance remaining after the expenses are deducted from the proceeds of the sale, the balance shall be deposited in a special fund in the name of the sheriff.
(2) If the proceeds are not sufficient to pay the expenses incurred as
provided in this section, the balance may be withdrawn from the fund provided for in subdivision (b)(1) of this section.
(3) At the end of each calendar year, any balance in this fund shall be deposited with the county treasurer to the credit of the county road fund.
2-39-101. Kinds required for enclosures
All fields and grounds kept for enclosures shall be enclosed with a fence sufficiently close, composed of sufficient posts and rails; posts, rails, and wire; posts and palings or palisades; or rails alone laid up in the manner commonly called a "worm fence."
2-39-102. Height requirement
(a) All fences composed of posts and rails; posts, rails, and wire; posts and palings or palisades shall be five feet (5') high, and the posts shall be deeply and firmly set in the earth.
(b) All fences of rails alone, commonly called a worm fence, shall be five feet (5') high.
2-39-103. Wire fences
All fences made of barbed wire and plank securely fastened to substantial posts eight feet (8') apart and five feet (5') above the ground; one (1) plank or strip of timber not less than two inches (2") wide; one (1) strand of wire to be placed above the strip of timber or plank on top of posts; one (1) plank one inch (1") by twelve inches (12"), or two (2) planks one inch (1") by six inches (6"), at the bottom with four (4) strands of wire properly spaced between such planks; or, instead of the one inch (1") by twelve inches (12") or one inch (1") by six inches (6") planks at the bottom, two (2) strands of wire; the strand at the bottom shall be four inches (4") from the ground, and the second strand shall be six inches (6") from the bottom strand, with four (4) other strands of barbed wire properly spaced between the second wire from the bottom, and the top strip of timber or plank; or instead of two (2) strands of wire at the bottom, one (1) plank one inch (1") by six inches (6") and five (5) strands of wire properly spaced between the top and bottom planks shall be a lawful fence.
2-39-104. Woven wire fences
All woven wire fences made of eleven (11) parallel, smooth hard steel wires, the top and bottom wire to be not less than number nine (9) and the intermediate wires to be not less than number eleven (11), all to be securely fastened together by upright stays, not exceeding twelve inches (12") apart, and made of number twelve (12) wire, and so constructed that the second wire from the bottom shall be three inches (3") from the bottom wire; the third, three and one-half inches (31/2") from the second wire; the fourth, four inches (4") from the third wire; the fifth, four and one-half inches (41/2") from the fourth wire; the sixth, five inches (5") from the fifth wire; the seventh, five and one-half inches (51/2") from the sixth wire; the eighth, six inches (6") from the seventh wire; the ninth, seven inches (7") from the eighth wire; the tenth, eight inches (8") from the ninth wire, and the eleventh, nine inches (9") from the tenth wire; and also so erected that the bottom wire shall not be more than four inches (4") from the ground, and so that each of the eleven (11) wires shall be securely fastened to upright posts not exceeding ten feet (10') apart, shall be and constitute a lawful fence.
2-39-105. Maintenance of division fences
When any person shall enclose any land adjoining another's land already enclosed with a fence so that any part of the fence first made becomes the partition fence between them, then, in such case, the charge of the division fence, as far as it is enclosed on both sides, shall be equally borne and maintained by both parties.
In all cases, the sufficiency of a fence shall be judged by the persons summoned to view the fence in accordance with the provisions of this chapter.
2-39-107. View of fence
Upon the complaint of the party injured to any justice of the peace of the township, the justice shall issue an order to three (3) disinterested householders of the neighborhood not related to the parties, reciting the complaint and requiring them to view the fence where the trespass is complained of and take a memorandum of it. Their testimony in that case shall be good evidence on the trial touching the lawfulness of the fence.
2-39-108. Animals breaking into enclosures
If any horse, cattle, or other stock shall break into any enclosure, the fence being of the height and sufficiency required by this chapter, or if any hog, pig, or shoat shall break into it, the owner of the creature shall:
(1) For the first trespass, make reparation to the party injured for the true value of the damages he may have sustained;
(2) For every trespass thereafter, double damages to be recovered with costs, before any justice of the peace or court having jurisdiction thereof, in the name of the injured party; and
(3) For the third offense from any of the animals named breaking into the enclosure, the party injured may kill and destroy the animals so trespassing without being answerable for it.
2-39-109. Damage by motor vehicle
In instances where a motor vehicle damages the fence or gate belonging to a person other than himself and the damage allows livestock to escape, the owner of the livestock shall not be liable for damage caused by the livestock until he has had actual notice of their escape and a reasonable opportunity to repair the fence or gate and recover the livestock.
2-39-110. Liability for injuring animals
If any person damaged for the want of a sufficient fence shall hurt, wound, lame, or kill, or cause the same thing to be done by shooting, hunting with dogs, or otherwise, any of the animals mentioned in this chapter, the person shall be liable to the owner of the animal for double damages, with costs.
2-39-111. Liability for damaging fence, etc
Any person who willfully cuts or otherwise damages the fence, gate, or gate lock of another shall be liable for triple damage plus attorneys fees and other costs.
Reviewed by AAHS in December 2001.
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