In West Virginia, if my neighbor's cows keep wandering onto my property, am I supposed to build a fence to keep them out, or is the cattle owner supposed to build one to keep them in?

Official title

Opinion of the Attorney General Regarding a Livestock Owner's Fencing Obligations

Plain-English summary

A Taylor County prosecutor asked whether a coal company has any duty to fence its property to keep out a neighbor's wandering cattle. The AG said no. West Virginia law puts the burden on the livestock owner: under § 19-18-1, if your livestock enters someone else's property without consent, you are civilly liable for any personal injury or property damage. Under § 19-18-3, you can also face criminal misdemeanor penalties for negligently letting livestock run at large.

The opinion does not require any landowner to build a fence; it just makes clear that if you choose not to fence your livestock in, the consequences land on you, not on your neighbor.

What this means for you

For a landowner whose property is being damaged by a neighbor's livestock

Under this opinion, West Virginia law places the duty to contain livestock on the livestock owner, not on the landowner whose property is being trespassed on. A coal company, timber operator, or other non-agricultural landowner is not required by state law to fence its land to keep someone else's animals out. The statutory framework cited by the AG, § 19-18-1, also gives the trespassed-upon landowner the 48-hour notice procedure, the right to contain the animal, and the right to recover the fair cost of containment in magistrate or circuit court.

For livestock owners

The AG concluded that a livestock owner who allows animals to run at large faces both civil liability under § 19-18-1 and possible misdemeanor liability under § 19-18-3. The opinion notes that "accident or unforeseen circumstances" can excuse an escape; the criminal standard is negligence, not strict liability.

For county prosecutors

The opinion confirms that § 19-18-3 supports a misdemeanor charge against a livestock owner who negligently permits livestock to run at large. The AG flagged that whether the elements are met in a given case is a fact-specific question (negligence and damages), not one the AG can resolve in the abstract.

For sheriff's deputies responding to a livestock-trespass complaint

The opinion describes the statutory role of the sheriff as the contact point when the trespassed-upon party cannot reach the livestock owner within 48 hours, per § 19-18-1(b).

Common questions

Is West Virginia a "fence-in" or a "fence-out" state?

Fence-in. The owner of the livestock is responsible for keeping the animals contained. Some Western states are "fence-out" states where landowners who do not want livestock on their property must build fences to keep them out, but West Virginia statute puts the duty on the livestock owner.

What if my neighbor's cows broke through a fence I didn't maintain?

Even if you own a boundary fence and it failed, the cattle owner still bears liability for the trespass under § 19-18-1. There is no statutory provision making a non-livestock landowner responsible for boundary fence maintenance.

Can I shoot or kill trespassing cattle?

This opinion does not address that question. § 19-18-1 lets you contain trespassing livestock and recover containment costs, but causing harm to another person's livestock raises separate issues under West Virginia property law and possibly the criminal cruelty-to-animals statute. Talk to a lawyer or the sheriff before taking any drastic action.

How quickly do I have to act after a trespass?

You have 48 hours to attempt to contact the livestock owner. If you cannot reach them in that time, notify the sheriff. Acting promptly preserves your right to contain the animals and recover costs.

Can I sue in magistrate court or do I need a lawyer?

Magistrate court has jurisdiction for damages within its monetary limits. § 19-18-1 expressly authorizes a civil action "in magistrate or circuit court," so you can file in either. Magistrate court is faster and does not require an attorney for most claims, though for serious property damage it may be worth consulting one.

Background and statutory framework

West Virginia's livestock liability statute is short and direct. § 19-18-1(a) provides:

If livestock enters the property of a landowner without that landowner's consent, the owner of the livestock is liable for damages for personal injury or property damage in a civil action in magistrate or circuit court.

The statute then sets out a procedural sequence: the trespassed-upon party must attempt to contact the livestock owner within 48 hours and notify the sheriff if that fails. The same party may contain the livestock and recover the fair cost of doing so.

The criminal counterpart at § 19-18-3 makes negligent failure to contain livestock a misdemeanor, with penalties that escalate from warnings to fines to conviction. The statute carves out an exception for "accident or unforeseen circumstances," recognizing that even a careful livestock owner cannot guarantee an animal will never escape. The criminal liability standard is negligence, not strict liability.

The opinion makes one important point that easy to miss: the AG noted that civil liability and criminal penalties both turn on facts about negligence and damages, which are case-specific. The AG cannot pre-decide whether a particular cattle owner was negligent. That is a job for a magistrate or jury based on the actual evidence.

Citations

• W. Va. Code § 5-3-1 (Attorney General's authority to issue legal opinions)
• W. Va. Code § 19-18-1 (civil liability for livestock trespass; 48-hour notice; right to contain and recover costs)
• W. Va. Code § 19-18-3 (criminal misdemeanor for negligently allowing livestock to run at large)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/17631/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

July 8, 2021

The Honorable John L. Bord
Taylor County Prosecuting Attorney
214 West Main Street
Grafton, WV 26345

Dear Prosecutor Bord:

You have asked for an Opinion of the Attorney General about legal responsibilities to keep one landowner's cattle from moving onto the property of another. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions . . . upon questions of law . . . whenever required to do so, in writing, by . . . any . . . state officer, board or commission." To the extent this Opinion relies on facts, it depends solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your request asks if a business that is not engaged in agriculture, specifically a coal company, is required to build a fence on its property to keep out the cattle of another landowner. The request also asks if the landowner whose cattle are crossing property lines is required to build a fence. Your letter represents that currently there is no fence between the business and the landowner in question.

This raises the following legal question:

What duties does West Virginia law impose on landowners with respect to keeping their livestock off the property of other, nearby landowners?

We conclude that under the plain language of the West Virginia Code it is unlawful for a landowner to allow their livestock to run at large and trespass on the property of other landowners. In doing so the landowner risks not only civil liability for negligence but also criminal penalties for injuries or destruction of property that their livestock cause.

First, West Virginia Code § 19-18-1 establishes civil liability for a landowner whose livestock trespass on the property of others. Subsection (a) reads that "[i]f livestock enters the property of a landowner without that landowner's consent, the owner of the livestock is liable for damages for personal injury or property damage in a civil action in magistrate or circuit court." The statute further prescribes the process that the party trespassed upon must take when livestock are present on their property: Subsection (b) requires the offended party to "attempt to contact the owner of the trespassing livestock within forty-eight hours of the trespass," and to notify the county sheriff if the landowner cannot be reached during that time. Following this, subsections (c) and (d) allow the party trespassed upon to contain the trespassing livestock if they wish and to receive fair cost for that containment.

Second, West Virginia Code § 19-18-3 sets out the potential criminal penalties for the owners of trespassing livestock. Subsection (a) provides that "[w]hile livestock may escape enclosures due to accident or unforeseen circumstances, it is unlawful for the owner of livestock to negligently permit livestock to run at large and trespass on the property of landowners." Subsection (b) lays out penalties for violations, including warnings, fines, and conviction of a misdemeanor.

Under these sections of the West Virginia Code, the issues of civil liability and criminal penalties hinge on questions of negligence and damages. These are fact-specific inquiries with regard to whether and how much a landowner may be at fault under circumstances you describe in your letter. We are aware of no authority, however, indicating that the coal company is the party required to take measures to keep out the livestock of an adjacent landowner. To the contrary, any landowners who choose not to build a fence to contain their livestock, and whose livestock then trespass on the property of another, open themselves to both potential civil and criminal consequences.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Caleb A. Seckman
Assistant Solicitor General