“I have been using a right of way for several years to access my house and lands. Part of the lands over which the right of way exists is unfenced and the cattle are left stray along the access way and can often stray on to the public road. The cattle are often out in front of the car as I drive up the laneway to access the main road so I have to get out of my car to hunt them back for fear of them running out to the main road. The landowner has refused to fence in his animals and I have told him that I would not like to see a gate go up along the laneway, so he claims that if his animals stray from his lands that I will be responsible for any damage caused by them. Could I be held responsible?”

There are two issues which strike me immediately from your query, the first being the stock owner’s duty to control his animals and, secondly, not to interfere with your use of the right of way.

Duty of stock owner to control animals

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Many civil claims are brought as a result of road traffic accidents caused by farm animals straying on to a public road. While the onus of proof primarily lies upon the car owner who is alleging negligence, once evidence is given in a case that a collision took place with animals which had wandered on to the public road and the car owner was in a position to identify the owner of the animals, then there is a case to be answered by the farmer.

At this point, there is a presumption that the farmer was negligent and he must prove on the balance of probabilities that he had taken such care as was reasonable to see that damage was not caused by his animals escaping from his lands on to the public road.

As long as the farmer is able to show that he took reasonable care by having adequate fencing and a locked gate (if the circumstances require), he is not required to prove how the animal came to be on the road, eg whether the animal jumped the fence or whether a gate was left open by some unknown person.

The condition of the fencing and gates leading into a farmer’s premises is carefully considered in any action in order to determine whether the defendant farmer had exercised reasonable care in maintaining his fences in a stockproof condition and had taken all reasonable steps to ensure that his stock did not stray on to the public road.

So the fact that part of the field is unfenced and the animals are free to access the public road may be regarded as negligence on the farmer’s behalf and he may be held liable for damage caused by his animals straying.

It is also worth highlighting that Section 8 of the Animal Health and Welfare Act 2013 imposes a prohibition on farm animals straying. It provides that a person, who has a farm animal in their possession or under their control, should take all reasonable measures to ensure that the animal is unable to stray from the land where it is kept.

Further, it provides that all buildings, gates, fences, etc, used to contain the animal should be constructed and maintained in a manner that minimises the risk that the animal will stray.

An offence under the act may be prosecuted summarily by the Minister for Agriculture, the local authority or a member of An Garda Síochána and is punishable by a fine not exceeding €5,000.

Further, the terms and conditions of the Basic Payment Scheme generally require land parcels to be appropriately fenced, which they define as stockproof fencing that will control the applicant’s animals and also the neighbouring farmer’s animals. Consequently, the farmer may also suffer a penalty to their Basic Payment Scheme payment if their lands were inspected and the land was found to be unfenced.

Interference with use of right of way

The person who owns the land over which the right of way exists has as good a right to the enjoyment of his land as the person who uses the right of way. It is often claimed that the erection of a gate across a right of way constitutes an interference with the use of that right of way. Whether it does or not depends on the purpose for which the gates were erected, such as to prevent straying animals or indeed the theft of animals.

It has been held in a case that the control of gates on a right of way was exclusively vested in the person who owned the land over which the right of way exists, but they must give means of opening them to persons who use the right of way and those persons must close the gates immediately after use. However, in another case, it was held that the person who used the right of way was entitled to put gates on the right of way as long as they did not interfere with the rights of the person over whose land the right of way was exercised.

It may be unreasonable to oblige the user of the right of way to keep a gate shut for the purpose of keeping out livestock when this purpose is otherwise fulfilled by the provision of a cattle grid for example.

Also, there may be no obligation to keep the gates closed if there is no stock on the land.

The obligations in respect of the installation of gates and the duty to keep them closed depend on the facts of each case.

In conclusion, I would suggest that you approach the landowner and advise him of the risk he is leaving himself open to by not controlling his animals and thereafter agree that the animals will be fenced in and perhaps agree to the installation of a cattle grid to prevent any risk of the cattle escaping to the public road.