Notes on Garden Law
WHEN legal advice is needed about matters concerning the garden, a solicitor should be consulted. The following notes can serve only as a guide to some of the legal problems relating to the garden.
The owner of a domestic animal is not, in the absence of negligence, liable for any vicious, mischievous act done by the animal, unless the vice or ferocity is contrary to the normal character of the species to which the animal belongs, and the owner is proved to have known of the animal’s tendency to do the kind of damage done. If the owner is, however, negligent, absence of knowledge is immaterial. But if a dog worries almost any farmyard animal, its owner becomes liable without any proof of knowledge or of neglect on his part or of any mischievous propensity in the animal.
The owner of domestic animals is bound to keep them upon his land under control, and if they escape on to a neighbour’s land and commit a trespass he is liable for such of the damage done as it is in their nature to do. It is to be expected, for example, that when cattle, sheep or poultry stray into a neighbour’s garden they will eat his grass and vegetable produce, and their owner will therefore be liable.
This liability is absolute, unless the escape was involuntary or due to an act of God or to the act of a stranger (not known to the owner) or unless it was caused by the default of the injured party (in failing to maintain his fence, for example). But no action lies for the trespass of cats or dogs (except as to farmyard animals) or for any damage that they do, unless the action can be brought for negligence. It is not negligence to allow liberty to an animal of a kind which is usually given liberty.
The owner of a domestic animal which enters a garden from a highway is not, if there has been no negligence, liable for damage caused by it, and the garden owner should protect his property byit. Any person bringing animals on to the highway is, however, bound to take reasonable care that they do no damage to the person or property of others, and if such a person is negligent the garden owner may be able to recover damages. He must, however, prove negligence, but the unexplained presence of the animal is some evidence of negligence.
A landowner is under no duty to prevent domestic animals escaping from his land on to the highway. If, therefore, such animals do escape, and cause damage, he is under no liability unless it can be shown that he knew of the animal’s mischievous or vicious propensities.
There is no right to enter a neighbour’s land to dig up rabbit burrows. There are, however, under the Pests Act, 1954, special Statutory Orders made for the reduction of the number of rabbits and a gardener who is plagued by rabbits could profitably ask if the Ministry of Agriculture, Fisheries and Food, Hook Rise, Tolworth, Surrey, could help him.
Local authorities enforce statutes dealing with rats and mice.
Provisions of the Protection of Birds Act, 1954, make it a criminal offence punishable by a fine to kill, injure or take any wild bird, or to take, damage or destroy the nest of any wild bird.
The Act, however, is much more complicated than this and there are four schedules which contain lists of birds. The Home Secretary has power to vary the names of the birds inserted in these schedules so that the birds which are protected at one time may later cease to be protected. The considerations which influence the Home Secretary are the rarity of the bird, or its value for horticulture or agriculture.
If, therefore, a gardener feels that he must kill some bird, he should pause if he is not sure what bird it is. On the other hand, if he is prosecuted for killing or injuring a wild bird (other than a bird protected at all times or during the close season by special penalties) he has a good defence if he satisfies the court that his action was necessary for the purpose of preventing serious damage to crops, or any other form of property.
Further information about the Act and wild birds can be obtained from the Royal Society for the Protection of Birds.
If a garden owner uses his garden in such a way as to interfere with the health