36-11-01. Stock running at large prohibited -- Penalty.
No cattle, horses, mules, swine, goats, or sheep may be permitted to run at large. Any owner or possessor of any such animal who willfully permits it to run at large through failure to maintain a lawful fence as provided in section 47-26-01, except in grazing area as provided in section 36- 11-07, is guilty of a class B misdemeanor.
36-11-02. Owner defined.
In any action brought under the provisions of this chapter, any person occupying or cultivating lands is considered the owner thereof.
36-11-06. Certain animals not to be permitted to run at large at any time --Penalty
The owner or person in charge of any stallion, jack, boar, ram, bull, or any animal known to be vicious who negligently permits such animal to run at large is liable in a civil action to any person who is damaged, either directly or indirectly, by such violation for all damages resulting therefrom and is guilty of an infraction. The provisions of this section, however, do not prevent the keeping of any stallion, jack, bull, or ram with any herd or flock which is attended by a herder if such stallion, jack, bull, or ram is kept with such herd or flock by the herder.
36-11-07. Liability of owners of horses, mules, cattle, sheep, goats, and swine injuring persons or property of others.
1. The owner or possessor of any horse, mule, head of cattle, sheep, goat, or swine, which inflicts any damage or injury to: a. Motor vehicles or their occupants upon a public highway within a grazing area wherein proper signs, approved by the state highway commissioner, indicating limited liability are posted at a point adjacent to such highway not less than two hundred feet [60.96 meters] nor more than four hundred feet [121.92 meters] from the entrance of such highway into such grazing area and so posted as to be plainly visible to persons approaching such entrance; or
b. The crops or other property of another or trespasses upon the lands or premises of another, where such damaged or injured crops, property, lands, or premises are located within a grazing area, except as provided in section 36-11-09, is not liable to any person sustaining such damages or injury.
2. For the purpose of this section, a "grazing area" means any area designated as such by a majority of the board of county commissioners, either upon the motion of one of the said commissioners or upon presentation to the board of a petition signed by a majority of the real property owners and tenants in the area in which it is proposed that a grazing area be established. A grazing area must be used primarily for the purpose of grazing livestock and enclosed by a fence or other suitable means.
3. Except as provided above, the owner or possessor of any horse, mule, head of cattle, sheep, goat, or swine which inflicts any damage to the crops or other property of another or which trespasses upon the lands of another, whether such lands are fenced or unfenced, is liable to the persons sustaining the injuries or to the owner of the lands for all damages suffered by him, together with the statutory costs of the action to recover such damages, and a reasonable attorney's fee therein to be allowed by the court.
36-11-09. Action permitted when livestock breaks through lawful fence.
Any person owning or having in his charge any livestock which goes through, over, or under any lawful fence is liable for all resulting damages. Any animal which goes through, over, or under a lawful fence is deemed a trespassing animal for the purposes of this chapter.
36-11-10. Trespassing animals may be distrained -- Notice to owner -- Security for release
The person suffering damages by reason of the trespass of any livestock may take up the offending animal or animals. The person suffering damages shall notify the owner, or the person in possession of the livestock at the time of the trespass, of the seizure of such animal or animals without unnecessary delay, if the owner or person in possession is known to the person suffering damages and is a resident of, and present within, the county in which the trespass occurred. The person suffering damages may retain such animal or animals in that person's custody until:
1. The damages sustained by reason of such trespass and the costs in the action to recover such damages have been paid; or
2. Good and sufficient security for the payment of the damages and costs is given, such security to be approved by a district judge serving the county in which the livestock is taken up. If the owner of the offending animal or animals elects to give security, the owner shall give to the person holding the livestock notice that security will be given and the date and hour when such security will be submitted to the district judge for approval. The notice must be given at least one day prior to the date set for the submission of the security to the judge. The cost of serving notices required under this section may be taxed as costs in the action. Where applicable, the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section, and the owner or person entitled to possession of such livestock may apply to a court of competent jurisdiction for the return of the livestock. If the court finds that the livestock have been wrongfully distrained, the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock, together with the costs of the action and reasonable attorney's fees.
36-11-11. Procedure when security given
When security for the payment of damages and costs is approved by the district judge, the judge shall issue an order directed to the person holding the livestock to deliver the stock to the person entitled thereto, and the officer receiving the order shall take the livestock and deliver it to the person. The cost of the proceedings may be charged as a part of the costs in the action to determine the rights of the parties regarding the livestock distrained for the trespass.
36-11-12. Notice of damages to owner of animal before action is commenced
Before commencing any action for damages caused by the trespass of any livestock, the party sustaining such damages, if he knows to whom such livestock belongs and the owner is a resident of, and is present in, the county in which the trespass occurred, shall notify such owner, or the person having the animals in charge, of such damage and the probable amount thereof.
36-11-13. When action for trespass of livestock must be commenced
A party claiming damages for trespass of livestock under the provisions of this chapter shall bring an action to recover the same within:
1. Sixty days after the infliction of such damages if the offending animals have been distrained by the person who has been damaged and a lien is sought to be impressed upon such animals for the amount of such damages.
2. Six years after the infliction of such damages if the offending animals have not been distrained by the person who has been damaged and no lien is sought to be impressed upon such animals for the amount of such damages.
36-11-14. Procedure when keeper or owner of trespassing animals is unknown
If the person suffering damage because of the trespass of livestock which has been taken up under the provisions of this chapter does not know the name of the owner or keeper thereof, he may bring an action against a defendant unknown. In such case, service must be made by publication of a copy of the summons, with a notice annexed thereto stating the nature of the action, in at least one issue of a legal newspaper if one is published within the county, and if not, by posting copies of the summons and notice in three public places within the county. Such publication or posting, as the case may be, must be made not less than ten days before the date of the trial. If it appears on the trial of any action brought to recover damages arising from the trespass of livestock that the person named in such action and upon whom the summons therein was served is not the owner or person in charge of the offending animals, the action must be dismissed as to him, and service must be made, and the action must proceed, as in a case in which the name of the owner or keeper of the offending animals is unknown.
36-11-15. Proof on trial of action for trespass of livestock
Upon the trial of an action brought under the provisions of this chapter, the plaintiff shall prove:
1. The amount of damages sustained by him by reason of the trespass; and
2. If he has distrained the animals committing the trespass, the amount of expense incurred in distraining and keeping the same.
36-11-16. Judgment for plaintiff is lien on offending animals
Any judgment rendered for damages against the defendant in an action brought under the provisions of this chapter is a lien upon the animals committing the trespass if such animals were distrained by the plaintiff, and such animals may be sold as in other cases of sale of personal property on execution, and the proceeds of the sale applied to the satisfaction of the judgment, and the animals are not exempt from seizure and sale upon such execution.
36-11-17. Collection of judgment against unknown defendant -- Disposition of surplus
After a judgment has been rendered against an unknown defendant as provided in section 36-11-14, the offending animals, or so many of them as may be necessary, must be sold in the same manner as personal property is sold upon execution. Any surplus remaining from such sale after the judgment and the costs in the action have been paid must be paid to the county treasurer for the benefit of the owner thereof, and if the owner does not appear and claim the same within six months thereafter, it must be paid into the school fund for the use of the public schools of the county.
36-11-18. When judgment of original court final -- Right to trial by jury
In all actions brought under the provisions of this chapter, if the amount of damages claimed does not exceed twenty-five dollars, the judgment of the court having original jurisdiction is final. Either party to such action may have a jury trial upon a demand therefor.
36-11-19. Taking animals distrained -- Penalty
Every person who, except by due course of law, takes, or advises or assists in the taking of, any animal distrained and held by virtue of any provision of this chapter, from the possession of the person having the same in his charge, without the consent of the person holding such animal, is guilty of a class B misdemeanor.
36-11-20. Sheriff to return or impound livestock running at large -- Expenses to be paid by owner
In the event of any complaint by anyone suffering injury or damages or likely to suffer injury or damages as a result of livestock running at large contrary to the provisions of section 36-11-01, the sheriff of the county wherein such livestock may be found shall return the livestock to the owner or impound the livestock and dispose of them as estray animals under the procedure set forth in chapter 36-13. The expenses incurred by the sheriff or his agents in performing the duties required of him in this section must be paid by the owner of the livestock. If the owner cannot be found the sheriff's expense must be recovered from proceeds remaining after the disposal of such animals as estrays.
36-13-01 Estrays -- Possession.
Any person may take possession of an animal as an estray when it is on property which he owns or controls, and when he does not know who is the owner of the animal. As soon as practicable he shall make careful examination of the said animal to determine the presence and identity of any brand upon it, the location thereof and any other marks or scars which may identify the same and he shall notify the sheriff of the county wherein the estray was found of such action, who shall record the date and time of notification and all information obtained by him as to brands or other marks and location helpful in determining ownership thereof.
36-13-02 Estray notice by sheriff.
Upon notification of an estray possession, the notified sheriff shall forthwith publish a notice in the official county newspaper once weekly for two weeks unless the animal is earlier claimed or sold, whichever is earlier. Two or more animals which are taken up by the same person at the same time may be described in one notice. The published notice must be on a form prescribed by the chief brand inspector, and at the time of first publication of any notice must be forwarded
to him for his files and the chief brand inspector shall send an official brand inspector to examine the animal for marks and brands and report his findings to the chief brand inspector and the sheriff. The notice must briefly describe the estray by color, sex, probable age and weight, and any distinctive brand or marks, and must show the date and place of taking up as well as the name and address of possessor.
36-13-03 Sale of unclaimed estray -- Records.
If an estray has not been claimed or the owner discovered within thirty days after notice of its description and possession has been published by the sheriff, he shall proceed to sell it at public sale through any licensed auction market, or public market. After an estray notice has been published for one week, and if the sheriff determines that the fair market value of an estray is twenty-five dollars or less, and he files his appraisal to that effect, the estray may be sold before expiration of the thirty-day period. Out of the proceeds of the public sale, the sheriff shall pay, in the following order of priority:
1. The reasonable charges incurred in preparation for and conducting the
2. The lawful charges of the person who took up the estray. Any balance remaining from a sale must be paid to the county treasurer who shall retain the amount subject to claim for one year, separate from other funds, after which time the money must go to the county general fund. Until the money goes to the county general fund, the sheriff shall keep a record and file of each estray brought to his official attention, showing the dates of any action thereon, the published notice, the details of any sale or other disposition, and disbursement of any proceeds.
36-13-03.1 Alternate disposition of estray.
In lieu of disposition of an animal as an estray as directed in the preceding section of this chapter, any person finding an estray upon his premises the ownership of which is unknown to him may dispose of the same by delivering such animal to a public livestock market licensed under the laws of this state as soon as practical after discovery of such animal upon his
premises provided he first makes reasonable effort to determine the ownership thereof. At the time of delivery of an estray as provided in this section, the person so delivering the estray shall inform the brand inspector that the animal is being delivered as an estray. Such animal, and the proceeds of the sale thereof, must thereupon be disposed of as provided in chapter 36-22.
36-13-04 Claiming estrays.
When the owner of an estray, prior to the sale thereof, presents to the person in possession of the animal his affidavit stating his name, place of residence and that he is the actual owner of the estray, describing it, then the person in possession of the animal shall release it to the claimant on payment of the lawful charges. The person formerly in possession shall then
promptly send the affidavit to the sheriff, who shall file and keep the same as record of the disposition of the estray. After there has been a sale of an estray under the provisions of this chapter, the former owner of an estray has no rights in the animal.
If the former owner of an estray files his verified claim with the board of county commissioners within one year after the date of the estray sale, and proves his former ownership to the satisfaction of the board, it shall order paid to the former owner and any lienors, as their interests may appear, the balance from the sale which is in the county treasury.
36-13-05 Lawful charges.
Any person lawfully taking possession of an estray may charge for actual damage done to his crops or premises by the animal, his actual costs of feeding and caring for it, and any expenses incurred in complying with this chapter, provided that no costs, charges, or expenses may be allowed which were incurred prior to notifying the sheriff that the animal was taken up except damage to crops or premises. If the interested parties cannot agree as to the amount of charges each shall choose one person and the two so chosen shall choose a third person and then the three persons so chosen shall arbitrate and determine the amount of the charges. The determination of these arbitrators is final if no sale of the animal has been had. In the event of a sheriff's sale the sheriff shall determine the amount of the charges to be received by the person taking
possession of the estray.
36-13-06 Liability for failure to give proper notice.
Any person who takes up an estray and:
1. Fails to make reasonable examination of the animal to determine the presence of brands or marks or scars to identify the same as herein required; and
2. Fails to notify the sheriff as provided in this chapter, is liable to the owner thereof for triple all damages caused thereby, and may not make any claim or charge, or seek damages in connection with the animal.
36-13-07 Liability for death, theft, or escape of estray.
If the person who takes up an estray notifies the sheriff as provided in this chapter, he is not responsible if, without his fault, such estray thereafter dies, is stolen, or escapes and wanders away.
36-13-08 Taking up estray -- Compliance with chapter -- Penalty.
Any person taking up an estray who willfully fails to comply with the provisions of this chapter is guilty of a class B misdemeanor.
36-21-10. Dogs, wolves, and coyotes worrying livestock or poultry may be killed
Any person may kill any dog, wolf, or coyote kept as a domestic animal:
1. When he sees such animal in the act of killing, chasing, worrying, or damaging any livestock or poultry; or
2. When he discovers such animal under circumstances which satisfactorily show that recently it has been engaged in killing or chasing sheep. A person who kills any dog, wolf, or coyote under conditions specified in this section is not liable in any civil action to the owner of such animal.
36-21-11. Owners of dogs liable for damages done to livestock -- Procedure when damages done by pack of dogs
The owner of any dog which kills, wounds, or chases any sheep or other domestic animal or poultry belonging to another person is liable to such other person for all damages caused thereby. If one or more of several dogs which are owned by different persons participates in the killing, wounding, or chasing of sheep or other domestic animals or poultry while running together, the owners of the respective dogs so running together may be sued jointly, and a joint verdict and judgment may be rendered against the owners of such dogs. If one or more of the defendants pays such a joint judgment, the payor or payors may have contribution from the defendants who have not paid in an appropriate action in which the respective damages committed by the several dogs running together may be prorated. No exemption is allowed to any person against whom a judgment is entered under the provisions of this section.
36-21-12. Killing of livestock by railroad is prima facie evidence of negligence.
The killing or damaging of any livestock by a railroad car or locomotive is prima facie evidence of carelessness and negligence on the part of the railway company or corporation.
36-21-13. Exemplary damages for wrongful injuries to domestic animals
Exemplary damages may be given to the owner of any animal for any wrongful injury thereto when such injury is committed willfully or by gross negligence.
47-26-01. Definition of legal fence
The following shall constitute a legal fence:
1. Any fence four and one-half feet [1.37 meters] high, in good repair, consisting of rails, timber, boards, stone walls, or any combination thereof.
2. All brooks, rivers, ponds, creeks, ditches, or hedges.
3. All things which, in the judgment of the fence viewers within whose jurisdiction the fence may be, are equivalent to the things specified in subsections 1 and 2.
4. Any fence upon which the interested parties may agree.
5. A barbed wire fence consisting of at least three barbed wires with at least number twelve and one-half gauge wire, the wire to be fastened firmly to posts which shall be not more than twenty feet [6.10 meters] or not more than forty feet [12.19 meters] and three stays apart. The top wire shall be not less than forty inches [101.6 centimeters] high, the bottom wire shall be not more than sixteen inches [40.64 centimeters] above the ground, and no two adjacent wires shall be separated by more than sixteen inches [40.64 centimeters].
6. A wire fence consisting of five smooth wires with posts not more than two rods [10.06 meters] apart and with good stays not more than eight feet [2.44 meters] apart, the top wire being not less than forty-eight inches [121.92 centimeters] nor more than fifty-six inches [142.24 centimeters] and the bottom wire being not less than sixteen inches [40.64 centimeters] nor more than twenty inches [50.8 centimeters] above the ground.
47-26-02. Fence viewers
In an organized township, the members of the board of township supervisors shall act as fence viewers.
47-26-03. Fence viewers taken from each township when a fence is on line between two townships
When the line upon which a partition fence is to be made or divided is the boundary line between civil townships or is partly in one civil township and partly in another, a township supervisor shall be taken from each township affected when the services of fence viewers are required.
47-26-04. Fees of fence viewers
Each township supervisor may be paid by the employing person at the rate of no more than fifteen dollars per day for the time employed as a fence viewer. If such person neglects to pay such fees within thirty days after the service is performed, the township supervisor may recover the amount thereof in a civil action.
47-26-05. Partition fences -- Maintained by occupants and owners of land -- Partition fence exceeding legal fence
The occupants and the coterminous owners of lands inclosed with fences are mutually and equally bound to maintain the partition fences between their own and the next adjoining enclosures unless one of such owners chooses to let his land lie open. If one of such occupants or owners shall require a partition fence which shall exceed the requirements for a legal fence, the occupant or owner who shall require such a fence shall bear the entire cost of erecting and maintaining such a fence unless both such occupants or owners shall otherwise agree.
47-26-06. Fences to be kept in repair throughout the year
All partition fences shall be kept in good repair throughout the year unless the occupants of the lands on both sides thereof mutually agree otherwise.
47-26-07. Fence viewers may order partition fence maintained
If any party neglects to repair or rebuild any partition fence which it is his duty to maintain, the aggrieved party may complain to the proper fence viewers, or a majority of them, who, after due notice to each party, shall proceed to examine the fence. If they determine that the fence is insufficient, they shall signify the determination in writing to the delinquent party, and direct him to repair or rebuild the fence within such time as they deemed reasonable. If the fence is not repaired or rebuilt accordingly, the complainant may repair or rebuild the same.
47-26-08. Person rebuilding or repairing fence may recover expenses
A complainant who has rebuilt or repaired a deficient fence as provided in section 47-26-07 may recover, from either the owner or the occupant of the land where the fence was deficient, the value of repairing or rebuilding the same and the fees of the fence viewers after:
1. The rebuilt or repaired fence has been adjudged sufficient by two or more of the township supervisors; and
2. The fence viewers have executed a certificate stating the value of repairing or rebuilding the fence and the amount of their fees. Before bringing suit for such sum, however, the complainant shall make demand upon the owner or occupant who shall have one month after such demand within which to make such payment. If suit is commenced to recover such amount, the claimant shall recover interest upon the total sum stated in the certificate at the rate of one percent per month.
47-26-09. Fence viewers to settle controversy as to rights in fence and duty to maintain
When a controversy arises relative to rights in a partition fence or the obligation to maintain the same, either party may apply to a majority of the proper fence viewers who, after notice to each party, may assign in writing to each person his share of the fence and direct the time within which each party shall erect or repair his share of the fence. If a party refuses or neglects to erect or maintain the part of a fence assigned to him, the aggrieved party may erect or repair the fence and the value thereof shall be ascertained and recovered in the manner provided in section 47-26-08.
47-26-10. Party erecting all or more than just share of partition fence may recover
If, in a controversy which has arisen between the occupants of adjoining lands as to their rights in a partition fence, it shall appear to the proper fence viewers that either of the occupants, before the making of a complaint, had voluntarily erected all, or more than his just share, of the fence or otherwise had become proprietor thereof, the other occupant shall pay for as much of the fence as shall be assigned to him to repair and maintain. The amount that shall be paid to the aggrieved party shall be ascertained and recovered as provided in section 47-26- 08.
47-26-11. Application to fence viewers to settle controversy when land is bounded by river or pond
When lands of different persons which are required to be fenced are bounded or divided by a river, brook, pond, or creek, and the occupant of the land on one side of the river, brook, pond, or creek refuses or neglects to join with the occupant of the land on the other side in making a partition fence on one side or the other of the river, brook, pond, or creek, or if the occupants of the lands disagree respecting the fence, the parties may apply to two or more of the proper fence viewers to adjust the controversy.
47-26-12. Determination of fence viewers when land bounded by water -- Notice -- Liability of delinquent party
The fence viewers to whom an application is made under section 47-26-11 shall proceed to view the premises described in the application forthwith. If such supervisors shall determine that the river, brook, pond, or creek is not, of itself, a sufficient fence and that it is impracticable, without unreasonable expense, to build a fence in the waters upon the true boundary line, they, after giving notice to the parties, shall determine whether the fence shall be erected and maintained on one side, or partially on one side and partially on the other side, of the river, brook, pond, or creek, and shall reduce to writing and sign their determination. If either party refuses to erect or maintain that part of the fence assigned to him in the determination, the other party may erect and maintain the same, and he may recover the expense and costs in connection therewith ascertained in the manner provided in section 47-26-08.
47-26-13. Partition fence erected in body of water erected in equal shares
When it is necessary to erect a partition fence in a body of water, such fence shall be built in equal shares unless it is agreed otherwise by the parties. If either party refuses or neglects to build or maintain his share of the fence, the other party may build or maintain the same and recover therefor in the manner provided in section 47-26-08.
47-26-14. Fencing of lands owned by different persons in severalty but occupied in common
When lands belonging to different persons in severalty have been occupied in common by such persons without a partition fence between their respective lands and one of the occupants desires to occupy his part in severalty, he may apply to a majority of the proper fence viewers:
1. If the other occupant or occupants shall refuse or neglect, upon demand, to divide with him the line where the partition fence ought to be built, to divide such line and assign to the parties the parts thereof upon which each party shall build the fence; or
2. If the other occupant or occupants, when the line has been divided, shall refuse or neglect, upon demand, to build a sufficient fence upon the line assigned, to order such fence built. Upon a division or assignment as provided in subsection 1, the fence viewers, in writing over their signatures, may assign a reasonable time for building the fence, having regard to the season of the year. If either party shall not build his part of the fence within the time assigned, the other party, after having completed his part thereof, may build the part assigned to the other party or parties and recover therefor the ascertained expense thereof, together with the fees of the fence viewers.
47-26-15. When partition fence removable
When one party ceases to improve his land or opens his enclosure, he may take away any part of the partition fence belonging to him and adjoining the next enclosure unless the owner or occupant of the adjoining enclosure shall pay the sum determined by a majority of the proper fence viewers to be the value of the part of the partition fence belonging to the party who has ceased to improve his land or who has opened his enclosure. The determination shall be in writing and signed by at least two fence viewers and the payment shall be made within two months after the value of the fence is ascertained.
47-26-16. Owner of unenclosed lands to pay value of fence when land is enclosed
When unenclosed ground is enclosed, the owner or occupant thereof shall pay one-half of the value of each partition fence standing upon the line between his land and the enclosure of any other owner or occupant. If the parties do not agree on the value of the fence, it shall be ascertained by a majority of the proper fence viewers. Such determination shall be in writing and shall be signed by a majority of the fence viewers. If the owner of the unenclosed land refuses or neglects to pay for one-half of the value of the partition fence within sixty days after the value of the fence has been ascertained and demand made, the proprietor of the fence may maintain a civil action for such value and the cost of ascertaining the same.
47-26-17. If owner determines not to fence land, he shall notify adjacent landowners -- Removal of partition fence
If a person shall determine not to fence any of his lands adjoining a partition fence that has been divided according to the provisions of this chapter and shall give six months' notice of such determination to all the adjoining occupants of the lands, he shall not be required to maintain any part of the fence during the time his lands are open, and he thereafter may remove his portion of the fence if the owner or occupant of the adjoining enclosure will not pay the sum determined by the fence viewers to be the value of the fence in the manner provided in section 47-26-15.
47-26-18. Division of fences valid against parties to agreement and their heirs and assigns
All divisions of fences or of the lines upon which partition fences are to be erected between unfenced land, which are made by the fence viewers in the manner provided in this chapter and recorded in the office of the register of deeds, and all such divisions which are made by the owners of adjoining lands in writing, witnessed by two witnesses, and signed and acknowledged by the parties making the division, and recorded in the office of the register of deeds, shall be valid against and binding upon the parties thereto and upon their heirs and assigns and all the succeeding occupants of the land, and they shall be obliged always thereafter to maintain their respective portions of the fence.
47-26-19. Fence viewers neglecting to perform duty -- Penalty
A township supervisor who unreasonably neglects to view a fence after having been requested to do so, or who refuses to perform any other duty required under the provisions of this chapter, shall forfeit the sum of five dollars and shall be liable to the party injured for all damages consequent upon such neglect.
47-26-20. Duty to maintain partition fence when lands enclosed for pasturage or grazing
The provisions of this chapter shall apply to the respective occupants of lands which have been enclosed with fences for pasturage or grazing purposes.
49-11-24. Railroad right of way -- Fences.
1. Every owner or lessee of land abutting any operating railroad's right of way who has a legal fence, as defined in section 47-26-01, along all sides of the land except the side abutting the right of way may make a written request of the owners or operators of the railroad to construct a fence along the right of way. Upon receipt of the request, the owners or operators shall erect, within a reasonable time, a legal fence along the right of way to confine livestock as required by section 36-11-01. The owners or operators shall maintain the fence so long as the owner or lessee maintains the fence around the other sides of the enclosure.
2. Where the railroad has a fence along its right of way, the owners or operators of the railroad shall maintain the fence without necessity of a request by the owner or lessee so long as the owner or lessee maintains a fence around the other sides of the enclosure.
3. Except for the penalty and liability imposed by sections 49-11-29 and 49-11-30, the failure to comply with the requirements of this section is not, in itself, evidence of negligence and the fact that this section has been violated is not admissible in any other action.
49-11-29. Failure to construct fence or swinging gate -- Penalty.
Any person owning or operating any line of railroad within this state andrefusing or neglecting to comply with sections 49-11-24 through 49-11-28 isguilty of a class A misdemeanor. A prosecution or conviction under sections49-11-24 through 49-11-28 does not relieve such person from liability for the maiming or killing of livestock on the right of way by reason of that person's negligence.
49-11-30. Failure of railroad to fence -- Damage to owner of stock -- How collected.
Any corporation operating a railroad and failing to fence the same against livestock running at large where the duty to fence exists is liable to the owner of any stock killed or injured by reason of the want of such fence for the full amount of the damages sustained by the owner, unless the injury was occasioned by the grossly negligent act of the owner of the stock or the owner's agent. To recover, the owner of the stock must prove only the loss of or injury to the owner's property. Notice in writing that a loss or injury has occurred, accompanied by an affidavit thereof, must be served upon an officer of the corporation or upon a station or ticket agent employed by the corporation in the county where the loss or injury occurred. If the corporation fails or neglects to pay the damages within ninety days after the notice is served on it, the owner is entitled to recover from the corporation double the amount of damages actually sustained by the owner, and a reasonable attorney's fee when it is adjudged by a court of competent jurisdiction that the claimant is entitled to the amount claimed.
Reviewed by AAHS in December 2001.
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