CRITICAL ANALYSIS OF THE CATTLE TRESPASS ACT, 1871

This article is written by Karthik Krishnan N of 7^th Semester of Christ Academy Institute of Law, an Intern under Legal Vidhiya

ABSTRACT

“All animals are equal, but some animals are more equal than others”.

George Orwell

This article conducts a nuanced exploration of the Cattle Trespass Act of 1871, critically analyzing its historical context and contemporary implications. It will emphasizing case laws, it examines judicial interpretations that have molded the application of the Act over time and it’s  Salient features are dissected to discern their effectiveness, while identified lacunae shed light on legislative gaps. Further, the  article delves into penalties, evaluating their deterrent impact on cattle trespass. Additionally, it scrutinizes available defenses, providing insight into legal strategies employed in response to allegations. By amalgamating these elements, the article aims to offer a comprehensive understanding of the Act’s evolution and its enduring relevance within the legal landscape.

Keywords

Cattle, Trespass, Pound Keepers, Impound, Unlawful Seizure, Penalties and Compensation.

INTRODUCTION

 At some point of time, we all have witnessed that any domestic animal could have damaged or ran into another person farm. In legal scenario, if any person entering into another’s premise without permission would amount to trespass , further it is unlawful act i.e. Tort. What if , if that was an animal . The Cattle Trespass Act of 1871 stands as a historic legislative framework designed to address the complexities arising from the interaction between cattle ownership, agricultural practices, and property rights. It enacted during a period marked by significant agrarian challenges, this legislation aimed to provide a structured approach to the management of impounded cattle and mitigate the damages caused by their trespass. This Act consists of 7 Chapters. This critical analysis aims to shed light on the enduring relevance and impact of a legal instrument crafted more than a century ago, providing insights into its strengths, limitations, and the broader socio-economic dynamics it seeks to address.

BACKGROUND

There were twelve pauperis tables under Roman law that determined and imposed animal culpability. The Romans applied the lex aquilia and culpa principles to animals as well as the scienter principle[1].

 Gaius[2] described pigs, goats, horses, mules, and oxen as “pecedeum numero sunt et gregatim harbentur,” or beasts of burden. Lions, panthers, and other fierce animals were listed in the category “a fortiori, beastae.” Although they were fierce animals, elephants and camels were mixed-stunts or used as beasts of burden.

The distinction between domestic animals (mansuetae naturae) and wild animals (ferae naturae) is the basis for one of the special rules of animal culpability. A person who keeps a wild animal is said to be keeping it at his peril and is considered to be strictly liable for any harm the animal may inflict. When such an animal injures a plaintiff, the plaintiff need not prove negligence.

Williams uses this terminology to explain the scienter principles, as follows:

“The general principle in present-day English law is that, liability for harm caused by one’s animal depends on prior knowledge of the animal’s violent character, with the exception of situations involving cattle trespass and the common torts of annoyance, negligence, and so on. In the past, this knowledge needed to be demonstrated in every situation, but under current law, it is assumed if the animal in question belongs to a dangerous species. The scienter principle, derived from the old writ’s phrase scienter retinuit, is the name of the principle, and evidence of knowledge is referred to as, rather grammatically, “proof of scienter.[3]“

In Kelly v. Wade[4], The plaintiff’s sheep were attacked and killed by the defendant’s dog. The plaintiff had to allege scienter because the animal was not ferae naturae, and the plaintiff’s claim that the defendant kept the animal negligently was deemed insufficient.

In Quinn v. Quinn[5], In addition to sharing use of a stall where the plaintiff maintained a cow and the defendant kept two sows, the plaintiff and the defendant shared the same yard. A wooden barrier kept the pigs and the cow apart. The sows belonging to the plaintiff were granted access to the cow’s side of the stall, where they proceeded to consume two of the cow’s paps. The wounds caused the cow to pass away. The plaintiff was successful because the defendant knew that the pigs had attacked and murdered specific chickens and cocks in the past.

When it comes to a wild animal, this kind of evidence is not required to prove responsibility. It was therefore not required to claim or provide evidence of the animal in question’s vicious tendencies in any of the cases where harm was caused by a bear, an elephant, or a zebra.

SALIENT FEATURES OF THE ACT

Establishment of pounds

Section 4[6] provides that pound, where impounded animals are kept, will be set up in locations directed by the District Magistrate. The State Government has a general say in this, but the District Magistrate ultimately decides the specific village for each pound

Control of pounds

The Section 5[7] of the Act explains that the District Magistrate holds control over the pounds, managing their operations and the District Magistrate is responsible for setting and adjusting the fees charged for providing food and water to impounded cattle.

Appointment of pound-keepers

The Section 6[8] lays down that the State Government will appoint a pound-keeper for each pound. Interestingly, pound-keepers are allowed to simultaneously hold other government offices. Additionally, every pound-keeper is considered a public servant according to the Indian Penal Code (45 of 1860).

Duties of Pound-keepers[9]

• To keep registers and furnish returns:

Pound-keepers are required to maintain registers and provide returns as directed by the State Government. These records likely include important details about impounded animals and their handling.

• To register seizures:

Upon the arrival of cattle at the pound, the pound-keeper has the responsibility to record:

1. The number and description of the animals,
2. The day and hour they were brought in,
3. The name and residence of the seizer,
4. The name and residence of the owner.

The pound-keeper also gives a copy of this entry to the seizer or their representative.

• To take charge of and feed cattle:

The pound keeper is entrusted with the care of the impounded cattle. This involves providing food and water until the animals are dealt with according to subsequent directions.

IMPOUNDING CATTLE

Section 10[10] –  It provides that People involved with the land, such as cultivators, those financing cultivation, or those with an interest in the crop, can seize cattle causing damage. These individuals are empowered to send the seized cattle to the village pound within twenty-four hours. The police are obligated to assist in preventing resistance to seizures and rescues from those making seizures. Section 11[11] gives that  Cattle damaging public roads, canals, and embankments. Those responsible for public infrastructure, like roads, pleasure grounds, canals, etc., along with police officers, have the authority to seize cattle causing damage to these areas. The seized cattle must be sent to the nearest pound within 24 hours.

Section 12[12] – It provides that Pound-keepers are mandated to impose fines for each impounded head of cattle based on a scale set by the State Government. The fines collected are to be sent to the Magistrate of the District through the designated government officer. Additionally, a list of fines and charges for feeding and watering cattle is to be prominently displayed at or near every pound.

DELIVERY OR SALE OF CATTLE

The Section 13 and 14[13] provides that If the owner or their agent appears and claims impounded cattle, the pound-keeper must release them upon payment of fines and charges. A receipt is signed in the pound-keeper’s register upon the return of the cattle. If cattle remain unclaimed for seven days, the pound-keeper reports to the nearest police station. A notice is posted, detailing the cattle’s description, seizure location, and impoundment details. If unclaimed after another seven days, a public auction is conducted unless the Magistrate deems an alternative disposition necessary respectively.

Section 15[14] gives that if  the owner disputes the legality of the seizure and intends to file a complaint, they can deposit fines and charges to reclaim the cattle. Further, Section 16 mentions that if the owner refuses or neglects to pay fines and expenses, the necessary cattle are sold at public auction. The proceeds cover fines, expenses, and feeding costs. The remaining cattle and any balance are returned to the owner with a detailed account.

Section 17[15] says if the officer overseeing the sale sends deducted fines to the Magistrate and Feeding and watering charges go to the pound-keeper, and surplus proceeds are held by the Magistrate for three months. If unclaimed, they are deemed part of the state revenues. Lastly, Section 19 lays down that no appointed officer, pound-keeper, or police officer may purchase cattle at auctions under this Act. Further, the Pound-keepers cannot release impounded cattle except as per the earlier outlined procedures, unless ordered by a Magistrate or Civil Court.

COMPLAINTS OF ILLEGAL SEIZURE OR DETENTION

The Section 20[16] provides that any person whose cattle have been seized under this Act, or unlawfully detained, can file a complaint within ten days from the seizure date. This complaint can be submitted to the Magistrate of the District or any authorized Magistrate without needing a reference from the District Magistrate.

Section 21[17] provides the procedure on complaint. It takes place as the complaint can be presented in person or through a representative familiar with the situation, either in writing or verbally. If verbal, the Magistrate records the essence in writing. If the Magistrate finds merit in the complaint during examination, the accused person is summoned, and an inquiry into the case is conducted.

PENALTIES

• Penalty for forcibly opposing the seizure of cattle or rescuing the same:

Anyone forcefully opposing the seizure of cattle or rescuing them, either from a pound or from someone authorized under this Act, can be convicted before a Magistrate. The punishment may include imprisonment for up to six months, a fine not exceeding five hundred rupees, or both – Section 24

• Recovery of penalty for mischief committed by causing cattle to trespass:

Fines for causing cattle to trespass on land can be recovered by selling the cattle involved, whether seized during the act or not. This applies regardless of whether the convicted person owns the cattle or had them in their charge during the trespass – Section 25.

• Penalty for damage caused to land or crops or public roads by pigs:

Owners or keepers of pigs causing damage to land, crops, or public roads through negligence or other means may face a fine not exceeding ten rupees. The State Government can, through official notification, modify the section’s applicability, referring to cattle generally or specific kinds, and adjust the fine amount – Section 26.

• Penalty on pound-keeper failing to perform duties:

Section 27 says that a pound-keeper releasing, purchasing, or delivering cattle against the provisions of section 19, or neglecting to provide impounded cattle with adequate food and water, can be fined up to fifty rupees upon conviction before a Magistrate. Such fines can be recovered by deductions from the pound-keeper’s salary. Further, the Fines collected under sections 25, 26, or 27 can be wholly or partially appropriated as compensation for proven loss or damage, as determined by the convicting Magistrate which is given under Section 28.

SUITS FOR COMPENSATION

• The section 29 ensures that nothing in this Act prevents individuals whose crops or other land produce have been damaged by cattle trespass from pursuing compensation through legal action in a competent court.
• Compensation paid to a person under this Act, as ordered by the convicting Magistrate, will be set-off and deducted from any sum claimed or awarded to the person as compensation in a separate legal suit.
• Section 22 gives that if the Magistrate deems the seizure or detention unlawful, the complainant is entitled to reasonable compensation, not exceeding one hundred rupees. This compensation is to be paid by the person responsible for the seizure or detention, along with fines and expenses incurred by the complainant. If the cattle haven’t been released, the Magistrate orders their release and instructs payment of fines and expenses by the responsible party. Compensation, fines, and expenses mentioned in section 22 can be recovered as if they were fines imposed by the Magistrate as provided under Section 23.

DEFENCES AVAILABLE

The caretaker is not responsible for any negligence when tending to cattle or other household animals. In Gloster v. Chief Constable of Greater Manchester Police[18], this was decided. But if the defendant is negligent and causes any kind of harm for which he is accountable, he can file an insurance claim and avoid having to pay for it out of pocket.

Although there was once some debate, it appears that two Irish instances have definitively shown that a third party’s actions can serve as a strong defense against a cattle trespass lawsuit. The plaintiff and defendant in Moloney v. Stephens[19] were the owners of adjacent land, and a third party possessed a right of way over both farms. When using his right of way, the third party neglected to shut a gate as required, causing the defendant’s horses to tread over the plaintiff’s property.

In a clear and concise statement, Judge O Briain stated that “the defendant has established a good defense in law to this action by showing that the trespass complained of was caused by the wrongful acts of a third,” citing an earlier Irish decision, McGibbon v. McCorry[20]..

• Act of God

It would seem that an Act of God should likewise shield the defendant from legal responsibility if the defendant’s actions provide a defense. Therefore, the owner of the livestock should not be held liable if an unusually strong wind blows down the fence or gate that the cattle were trespassing through. Moreover, it would seem that Act of God ought to be a defense in cases of cattle trespassing since it was in the Rylands v. Fletcher[21] case. Cattle trespass liability doesn’t seem to need to be any stricter than Rylands v. Fletcher for any reason.

• The Plaintiff’s own fault and Contributory Negligence

Naturally, the plaintiff cannot file a claim if he is the exclusive cause of his own misfortune. Thus, for instance, the plaintiff cannot file a legal complaint if the defendant’s cattle trespassed on his property due to the plaintiff’s failure to erect a fence. In case he bears partial responsibility for the trespass, the Civil Liability Act 1961’s apportionment clauses ought to be applicable.

• Inevitable Accident

At least in some restricted circumstances, it seems that the defense of inevitable accident is admissible. At least in cases when the cattle trespass is required to ensure the defendant’s rights are reasonably fulfilled, it appears to be acknowledged. In a long-ago case recorded in the Year Books, the defendant was turning the oxen and plowing at a headland, as he was customarily allowed to do, when his ox bit on the plaintiff’s grass.

When Lavery J. stated, “The owner of a straying animal is not liable if the escape is due to something unavoidable,” in the case of Winters v. Owens[22], he appeared to be inclined to concede it generally. It’s hard to say if Lavery’s statement represents a complete embrace of the defense of inevitable accident in every situation.

The idea of pet liability insurance has become more and more popular recently. This isn’t a farm animal insurance policy or a pet health insurance policy. This insurance covers both domestic and wild animals that people own but do not intend to raise. These insurance policies are becoming more and more common in the US, where numerous companies provide them.

LACUNAE IN THE ACT

The Cattle Trespass Act of 1871, while serving as a significant legal framework, exhibits certain lacunae that have become apparent over time.

One notable gap lies in the Act’s somewhat limited scope, primarily addressing issues related to agricultural land. The legislation may not adequately encompass emerging scenarios, such as cattle trespass impacting urban areas or ecological zones beyond traditional farmlands.

Moreover, the Act’s penalties, though present, might be perceived as insufficient or outdated in the context of current economic realities. The prescribed fines may not necessarily align with the economic value of damages caused by cattle trespass, potentially diminishing the Act’s deterrent effect.

Finally, there could be ambiguity in defining certain terms or delineating responsibilities, leaving room for varied interpretations. This lack of clarity may contribute to legal disputes and hinder the Act’s seamless enforcement. The cattle definition as under Section 2 provides some of the animals but it could not cover all the cattle.

CASE LAWS

Budhan Mahto V. Issur Singh[23]

In this case , it held that even though a complaint filed under Section 20 of the Act needs to be considered by a District Magistrate or a Magistrate who has been specially authorized, such Magistrate now has the authority to forward the case to any Subordinate Magistrate as specified by the Code after receiving cognizance of it.

According to Section 20 of the Cattle Trespass Act, if someone’s cattle were seized in violation of the Act’s provisions, they have ten days from the date of the seizure to file a complaint with the District Magistrate or any other magistrate who is able to hear cases without the District Magistrate’s involvement. In an earlier ruling from the Calcutta High Court from 1896, as stated in Raghu Singh v. Abdul Wahab[24], it was decided that any magistrate other than a District Magistrate would require special permission before they could hear a case under Section 20 of the Cattle Trespass Act.6. At the time, the Code of Criminal Procedure was such that a conduct that could give rise to a complaint under Section 20 of the Cattle Trespass conduct was not included in the definition of the expression offence in S. 4(p).

However, the term of “offence,” as stated in S. 4(o) of the Code of Criminal Procedure of 1898, was expanded to encompass an act for which a complaint may be filed under S. 20 of that Act. A Sub-divisional Magistrate may take cognizance of an offence under S. 190 and S. 192, respectively, and may forward the matter to a subordinate Magistrate for trial. As a result, the Code clearly declared such a conduct to be illegal.

Civil wrong but not crime

Even if there was no damage, it would still have to be acknowledged that no violation of section 24 of the Cattle Trespass Act was committed, as demonstrated by Satola v. Emperor[25] The defendants would not have the legal authority to transport the cattle to the cattle pound if there had been no violation of 24, the Cattle Trespass Act. However, this does not imply that they were not sincere in their view that, as a result of the cattle having trespassed into their field, they were entitled to take them to the cattle pound.

 Emperor v. Shib Lai[26]:

It states that although someone may be guilty of a civil wrong, they do not commit the crime of theft when they remove something in good faith and do not aim to do so dishonestly. He won’t be subject to punishment for an offense under the Indian Penal Code, but he could be sued for damages in a civil court.

Not a self-defense

Ganouri Lai Das v. Queen Empress[27]

In this case , it held that a wrongdoing or illegal act does not automatically give rise to the right of private defense. It only occurs when such wrongdoing or illegal act qualifies as an “offence,” Furthermore, it has to be a certain type of offense. According to Section 97 of the Penal Code, an offense “affecting the human body” is required for defense of person, and an offense “affecting the property” means it must involve theft, robbery, mischief, criminal trespass, or an attempt to conduct any of these offenses.

Further, in the case of the actions of defendants may have violated Section 22 of the Cattle Trespass Act, but they did not meet the criteria outlined in Section 97 of the Penal Code, so they could not give rise to a private right of property defense. In the event that the accused did not have the right to self-defense, their actions in causing harm and death were undoubtedly unlawful.

CONCLUSION

To conclude , the critical analysis of the Cattle Trespass Act of 1871 unveils both its enduring significance and inherent lacunae. The legislation, a product of its time, has played a pivotal role in navigating the complexities of cattle trespass and property rights. Through an examination of case laws, it becomes evident that judicial interpretations have both fortified and questioned the foundations of the Act, shaping its practical application.

However, identified lacunae highlight areas where the Act may fall short in addressing contemporary challenges. The limited scope, especially in urban and ecological contexts, raises questions about its adaptability. Additionally, the Act’s relative silence on leveraging technological advancements underscores the need for modernization. The penalties, while present, may warrant reconsideration to align with current economic realities, ensuring a more impactful deterrent against cattle trespass. Ambiguities in definitions and responsibilities further emphasize the importance of periodic reviews to enhance clarity and prevent legal disputes.

REFERENCES

1.   Batra, M., 2010. How is the Master of an Animal Liable in Tort Law? Available at SSRN 2447350.
2.   Jackson, B.S., 1978. Liability for animals in Roman law: an historical sketch. The Cambridge Law Journal, 37(1), pp.122-143.
3.   Williams, J. E. Hall. (1953). Report of the Goddard Committee on the Law of Civil Liability for Damage Done by Animals. The Modern Law Review. 16 (4), 497-501.
4.   (1848) 12 ILR 424
5.   39 ILTR 163.
6.   The Cattle Trespass Act, §4, No. 1, Acts of Parliament, 1871 (India).
7.   The Cattle Trespass Act, §5, No. 1, Acts of Parliament, 1871 (India).
8.   The Cattle Trespass Act, §6, No. 1, Acts of Parliament, 1871 (India).
9.   The Cattle Trespass Act, §7, No. 1, Acts of Parliament, 1871 (India).
10.   The Cattle Trespass Act, §10, No. 1, Acts of Parliament, 1871 (India).
11.   The Cattle Trespass Act, §11, No. 1, Acts of Parliament, 1871 (India).
12.   The Cattle Trespass Act, §12, No. 1, Acts of Parliament, 1871 (India).
13.   The Cattle Trespass Act, §14, No. 1, Acts of Parliament, 1871 (India).
14.   The Cattle Trespass Act, §15, No. 1, Acts of Parliament, 1871 (India).
15.   The Cattle Trespass Act, §17, No. 1, Acts of Parliament, 1871 (India).
16.   The Cattle Trespass Act, §20, No. 1, Acts of Parliament, 1871 (India).
17.   The Cattle Trespass Act, §21, No. 1, Acts of Parliament, 1871 (India).
18. Williams, J. E. Hall. (1953). Report of the Goddard Committee on the Law of Civil Liability for Damage Done by Animals. The Modern Law Review. 16 (4), 497-501.
19. (1848) 12 ILR 424.
20. The court followed May v. Burdett (1846), 9 Q.B. 101, 115 E.R. 1213. See also Daly v. Hagarty, 40 ILTR 26. It should be noted that statutory liability for dogs worrying sheep did not exist at the time of this decision.
21. A.I.R. (27) 1940 Pat. 299
22. A.I.R. (6) 1918 Pat. 649
23. [2000] PIQR P114
24. [1945] Ir. Jur. Rep. 37.
25. 43 ILTR 132
26. (1868) L.R. 3 H.L. 330.
27. [1950] I.R. 225.
28. 1907 SCC Online Cal 209
29. ILR 23 Cal 442
30. A.I.R. 1918 ALL. 267
31. A.I.R. (20) 1933 ALL. 620
32. 16 Cal. 206 (218).

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[1] Batra, M., 2010. How is the Master of an Animal Liable in Tort Law?. Available at SSRN 2447350.

[2] Jackson, B.S., 1978. Liability for animals in Roman law: an historical sketch. The Cambridge Law Journal, 37(1), pp.122-143.

[3] Williams, J. E. Hall. (1953). Report of the Goddard Committee on the Law of Civil Liability for Damage Done by Animals. The Modern Law Review. 16 (4), 497-501.

[4] (1848) 12 ILR 424

[5] 39 ILTR 163.

[6] The Cattle Trespass Act, §4, No. 1, Acts of Parliament, 1871 (India).

[7] The Cattle Trespass Act, §5, No. 1, Acts of Parliament, 1871 (India).

[8] The Cattle Trespass Act, §6, No. 1, Acts of Parliament, 1871 (India).

[9] The Cattle Trespass Act, §7, No. 1, Acts of Parliament, 1871 (India).

[10] The Cattle Trespass Act, §10, No. 1, Acts of Parliament, 1871 (India).

[11] The Cattle Trespass Act, §11, No. 1, Acts of Parliament, 1871 (India).

[12] The Cattle Trespass Act, §12, No. 1, Acts of Parliament, 1871 (India).

[13] The Cattle Trespass Act, §14, No. 1, Acts of Parliament, 1871 (India).

[14] The Cattle Trespass Act, §15, No. 1, Acts of Parliament, 1871 (India).

[15] The Cattle Trespass Act, §17, No. 1, Acts of Parliament, 1871 (India).

[16] The Cattle Trespass Act, §20, No. 1, Acts of Parliament, 1871 (India).

[17] The Cattle Trespass Act, §21, No. 1, Acts of Parliament, 1871 (India).

[18] [2000] PIQR P114

[19] 1945] Ir. Jur. Rep. 37.

[20] 43 ILTR 132

[21] (1868) L.R. 3 H.L. 330.

[22] [1950] I.R. 225.

[23] 1907 SCC Online Cal 209

[24] ILR 23 Cal 442

[25] A.I.R. 1918 ALL. 267

[26] A.I.R. (20) 1933 ALL. 620

[27] 16 Cal. 206 (218).

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