Title: Opinion File 75-37 thru 75-41
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003430/00001
 Material Information
Title: Opinion File 75-37 thru 75-41
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Buddy Blain's Collections - Opinion File 75-37 thru 75-41
General Note: Box 14, Folder 4 ( Opinion File 1974 - 1975 - 1974-1975 ), Item 58
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003430
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


May 14, 1975

RE: Trespassing Cattle (SWFWMD)

Attached please find a memorandum that I have prepared pursuant
to your request. In accordance with your request, I have
attempted to address the problem in general terms, and you
should be advised that this is not intended as any in depth
study of this area of law.

I'1 be happy to follow through on this if you should desire.


May 14, 1975



For considerable length of time before 1949, Florida was
regarded as an"open range" state. Until the adoption of the
"Warren Act" in 1949 (Chapter 25236, Laws of Florida) unless
prohibited in certain specified areas of the state by special
law or general law of local application, Florida was regarded
as an open range state. During this period of time, the owner
of cattle and other animals that trespassed upon the land of
other properties was not responsible for damage caused to the
adjoining land owner or his property by the trespassed. Under
the provisions of Chapter 588, Florida Statutes, as they then
existed, it was the duty of the adjoining land owner to keep
his property fenced in order to keep out cattle and other
animals rather than the duty of the cattle owner to keep his
own property fenced in order to keep the cattle in. In 1949,
the Warren Act repealed this provision of the Florida Statutes.
In the case of Rockow vs. Hendry, 230 So4 2d 717, (2d D.C.A.,
Florida., 1970), the effect of the repeal of the earlier provi-
sion of Chapter 588 was discussed. In this case, the plaintiff
filed suit for damages and injunctive relief in order to
recover for injuries his "peper crop" sustained by the virtue
of trespassing of cattle belonging to an adjoining landowner.
He also sought injunctive relief to prohibit future trespasses
of the cattle. The Court. in the course of discussing the
history of the provisions of Chapter 588 indicated that with the
repeal of Section 588.03, Florida ceased to be an"open range"
state. The Court further ruled that the repeal of this portion
of Chapter 588 brought back into effect the English Common Law
Rule to the effect that anowner of cattle, while having no
obligation to fence them in, was bound to keep them contained
at peril or suffer damages for the trespass. The Second
District Court of Appeals certified the question to be one of
great importance and upon consideration, the Supreme Court of
Florida affirmed. (238 So. 2d 588, Florida).



Recognizing the difference between wild animals and domestic
animals with an appreciation of the personal property aspects
of domesticated tamed animals, the legislature has provided in
Chapter 707, Florida Statutes a method by which abandoned and/or
straying animals may be collected and disposed of. This chapter
provides a method for the disposition of estrays.

As defined in Section 707.01, Florida Statutes, cattle of
all kinds wondering about the neighborhood for six months .
shall be considered estrays. Any person may take up all estrays
that may be found straying away form their owners. (Section 707.04,
Florida Statutes).

Section 707.06, Florida Statutes, provides the method under
which a person may proceed to "take up estrays such as cattle."
In essence, this provision requires that the person co ~ c up n
the cattle calls the cattle to be viewed and inspectedesiding
within the county. Thereafter, the person collecting the cattle
together with the householder is required to go before a County
Court Judge and swear that the cattle were collected by him, and
that the marks and brands on the cattle have or have not been
to the best of his knowledge and belief altered. Thereupon, the
Judge shall obtain from the collector (referred to in the statute
as a "taker-up") a sworn statement regarding a particular descrip-
tion of the cattle. The County Judge will then require that the
cattle be appraised within five days and the value of the cattle
and description be transmitted to the Clerk of the Circuit Court
in that county.

Prior to the delivery of the description and the appraisal
to the Clerk the, "taker-up" shall cause an advertisement and
notice of taking up to be posted on the county courthouse doors
for at least five days. Thereafter, upon receipt of the descrip-
tion. and the appraisal statement, the Clerk of the Circuit Court
is required to advertise the estrays together with the description
and the name of the "taker-up" on the courthouse door of the
county and also in a newspaper published in the county once
a week for four weeks.

Thereafter, if any person appears claiming ownership of these
cattle, the County Court Judge is authorized to release them to
him upon payment of the advertising cost and other fees set forth
in Section 707.10, Florida Statutes. In the event no person does
appear to claim ownership of the collected cattle, the County
Court Judge is authorized to proceed to sell the cattle at such
place and by such person as he may consider most to the interest
of the county upon one of his regular court days, between the
usualhours, for ready money, to the highest bidder.

The "taker-up" is entitled to be reimbursed a "reasonable
satisfaction" for maintaining and keeping the animals in his
care and custody pending their sale. (Section 707.13, Florida
Statutes). Additionally, upon the delivery of any estray to the
legal owner or after the sale, as the case may be, the "taker-up"

r r 7540

is entitled to receive the sum of 12 1/2 cents for each head
of cattle collected.

Additional fees are deducted from the selling price or in
the alternative are charged against the true owner of the cattle
in accordance with Section 707.11 and 707.15, Florida Statutes.

The potential liability of the Southwest Florida Water
Management District for following this procedure is substantial.
Section 707.03 imposes upon any person taking up any estray in
failing or neglecting to comply with the requirements of
Chapter 707, to forfeit and pay a sum equal to double the value
of the cattle. However, if, after notice is published and some
of the cattle happen to die, or happen to be lost by the South-
west Florida Water Management District, it willAnot be liable
for the cost of the cattle.

Lastly, I feel it would be helpful to point out another
provision of Chapter 707. Provision 707.18, 707.19 and
707.20, Florida Statutes, indicate that it is lawfully and
proper for the owner of cattle to enter on the property of
other persons to recover cattle belonging to him that have
strayed from his property inadvertently. The entry onto the other
party's property shall only be done after having given notice to
said owner in writing or otherwise prior to the entry. The owner
of the property upon which the cattle may be located is under a
duty to permit the proper owner to come onto his property and
recover his cattle if he receives such notice.


The provisions of Chapter 588, Florida Statutes, are those
of which you are probably most familiar. These prohibit any
owner of livestock from permitting his livestock to run at large
on or stray upon the public roads of the state of Florida. It
is the duty of the sheriff, his deputies, or any other law
enforcement officer of the county, or state highway patrolman,
when livestock is found to be running at large or straying,
upon the public roads of the state, to take up, confine, hold
and impound any such livestock to be disposed of in accordance
with the provisions of Chapter 588. (Section 588.16, Florida
Statutes). Under this procedure for impoundment, the sheriff
is required to provide notice by publication in newspapers of
general circulation on one occasion or by posting notice on
the courthouse door and in two other conspicuous places within
the county within which the livestock was located. Unless the
impounded livestock is redeemed within three days by the lawful
owner, the sheriff shall immediately give notice of sale which
shall be held not less than five days and not more than ten days
from the first publication of the notice of sale. This notice
of sale has to be published in a newspaper of general circulation
or by posting a copy of such a notice at the courthouse door.


If there is no bidder for the livestock at the public sale,
the sheriff is authorized to kill or cause to be killed the
livestock in question. Otherwise, the sheriff is required to
transmit the purchase price to the Clerk of the Circuit Court
who shall thereafter pay the cost of the impoundment including
the cost of publishing notice and the cost for feeding and
caring for the impounded animals. The:costs-and fees charged
against the proceeds of the sale are described in Section 588.18,
Florida Statutes.

The true and lawful owner of the impounded livestock has the
absolute right to redeem the livestock prior to the sale by paying
all the impounding expenses, fees, keeping charges, advertising
and other expenses and costs incurred by the sheriff in connection
with the taking up of the livestock. (Section 588.23, Florida


Part II of the Mechanic's Lien Law, Chapter 713, Florida
Statutes, provides a lien in favor of all persons feeding or
caring for the horse or other animal of another, including
all keeper of livery, sale or feed or feed stables for feeding
or taking care of any horse or animal put in their charge; upon
such horse or other animal. (Section 713.65, Florida Statutes).

This is the only provision of statutory law that I've been
able to locate that would allow a lien to be impressed upon
the cattle for their care and feeding. I have severe doubts
as to whether or not this wouldin fact give the Southwest
Florida Water Management District a lien on these cattle for
this purpose, because, in all likelihood, the owner$of these
cattle have not placed them in charge of Southwest Florida
Water Management District for the purpose of rendering these

Aside from the statutory law, I believe that the Southwest
Florida Water Management District would be entitled to reimburse-
ment for outstanding fees and costs incurred with the removal of
the animals from their property, however, this will have to be
enforced either by an action at law for damages or in equity
to impress an equitable lien upon the cattle or against the


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