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 found no authority requiring it to do so. Under § 19-18-1, a livestock owner risks civil liability for personal injury or property damage from a trespass. Under § 19-18-3, negligent permission to run at large may also bring criminal penalties.

The opinion does not prescribe a particular fence. It says a livestock owner who chooses not to build one and whose animals trespass faces potential civil and criminal consequences.

What this means for you

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

The AG found no authority requiring the coal company described in the request to fence out its neighbor's cattle. Under § 19-18-1, a landowner whose property is trespassed upon must attempt to contact the livestock owner within 48 hours and notify the sheriff if contact fails; the landowner may contain the animals and recover fair containment costs.

For livestock owners

The AG concluded that a livestock owner whose animals trespass risks civil liability under § 19-18-1 and possible misdemeanor liability for negligent conduct under § 19-18-3. The opinion notes that animals may escape because of "accident or unforeseen circumstances."

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?

The opinion places the risk of civil and criminal consequences on a livestock owner whose animals trespass, while finding no authority requiring the coal company in the request to fence them out. It does not prescribe a particular type of enclosure.

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

The opinion does not address an existing or failed boundary fence; the request described land with no fence between the properties. It says negligence and damages must be assessed on the facts.

Can I shoot or kill trespassing cattle?

This opinion does not address harming trespassing livestock. It describes the statutory option to contain them and recover fair containment costs.

How quickly do I have to act after a trespass?

Under § 19-18-1(b), the party trespassed upon must attempt to contact the livestock owner within 48 hours and notify the county sheriff if the owner cannot be reached during that time. The opinion also describes the option to contain the animals and recover fair containment costs.

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

Under § 19-18-1, a civil action may be brought "in magistrate or circuit court." The opinion does not discuss filing procedures or representation requirements.

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 prohibits negligently permitting livestock to run at large and lists warnings, fines, and misdemeanor conviction among the possible penalties. It recognizes that livestock may escape because of "accident or unforeseen circumstances."

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