You could subtitle this one – Lawful Fence Re-visited.
You might recall an earlier post concerning the rights of livestock to roam in Arizona’s unincorporated areas. Basically they have the right of way. And there was a bit of follow up to that concept when I explained the lawful fence statute. Since forage is short in many places right now, the range livestock are looking for things green and tasty to munch on. Not surprisingly, I have had calls recently from upset residential property owners whose situation revolve around these 2 statutes and the livestock out there roaming onto their property for a snack, or in some cases a 7-course meal.
I also want to point out that just like orges and onions, the law has layers. I hope (since I can no longer say that I trust given what I’ve witnessed and experienced with the educational system) that we all understand that the Constitution to the United States of America is the supreme law of the land. That’s Layer One, at least as far as I’m concerned. But there are several others. There’s also U.S. Code (U.S.C. – permanent federal law) and the Code of Federal Regulations (C.F.R. – the rules that federal bureaucracies promulgate) that accompany the Constitution on the federal level. (By the way, does anyone else out there think PromulGate sounds like the cover up that occurred subsequent to actions at someone’s high school prom and those actions were subsequently uncovered – say roughly 9 months later??)
Then we have the state level. And in Arizona that means Arizona Revised Statutes (A.R.S. – state law) which is often accompanied by Arizona Administrative Code (A.A.C. – which are the rules that state bureaucracies issue at the direction of various statutes, and one of which made at least one person from out of state very unhappy yesterday). Then we have the county/local level. There are county ordinances as well as city/town ordinances that form there own layer.
Any and all layers may have some application in a given matter. For example the call from the property owner that I mentioned back at the start. His property was zoned into a certain classification. He understood this zoning to pertain to the Open Range situation in Arizona (btw – that’s a colloquialism – I’ve never been able to find it in statute.)
But his understanding was in error because zoning issues are a county matter while the roaming of livestock is a state matter. And so we have separate layers of our onion which in this case don’t connect. Now if the situation were a little different, say that we had a city or town limit involved in place of the zoning ordinance, then we have a different legal situation because by statute, livestock aren’t allow to roam in town. (I’ll refrain from drawing parallels to some humans’ behaviors that I’ve seen demonstrated inside city limits.)
Whew. I hope you’ve been taking notes on that! Because here’s another wrinkle, err, statute that pertains in the callers situation.
Because the caller’s fence didn’t meet the definition set forth in Section A of the Lawful Fence statute and because Section B gives the fence owner protection if the fence is equally as strong and otherwise effective, the owner may be entitled to damages. However, that’s a judgement to be made by the civil court; not an enforcement action to be made by the certified peace officers who report to the state veterinarian. The owner would need to petition the court (and which court to approach is dependent on the dollar amount involved) to be heard on the matter.
Additionally, A.R.S. 1428 provides for a lien against the livestock to the person whose property the livestock damaged. So if livestock break through your lawful fence and you can pen them, and if you recover damages through the court, then the statute also entitles you to a lien against them for those damages.
And some folks wonder why I preferred studying simple things like the Krebs Cycle!
One parting observation – I’ve been reading a little book lately that’s a compilation of essays about the signers of the Constitution. If you think all this convoluted law business is relatively new then I’d recommend that you read Signing Their Rights Away. Many of those folks were in and out of court (not just because of their profession but because someone was after them!) for much of their lives. Several went broke speculating on land. Some even wound up in debtors prison.