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8-4-32-1. Extent of liability
Any railroad corporation, lessee, assignee, receiver, and other person or corporation,
running, controlling, or operating any railroad into or through this state, shall be
liable, jointly or severally, for stock killed or injured by the locomotives, cars, or
other carriages run on such road, in the name in which the road was run or operated at the
time, to the extent and according to the provisions of this chapter; and the bills of
lading usually issued at any railroad station in the county in which such stock was killed
or injured shall be prima facie evidence as to the character or name in which said
railroad was owned, held, controlled, or operated.
8-4-32-2. Action in circuit court
If an animal is killed or injured by the locomotives, cars, or other carriages used on any
railroad in or running into or through Indiana, whether the railroad is run and controlled
by the company, a lessee, an assignee, a receiver, or other person, an owner of the animal
may file a complaint and prosecute a claim in the circuit court of the county in which the
animal was injured or killed.
8-4-32-7. No liability when road fenced
This chapter shall not apply to any railroad securely fenced in, and such fence properly
maintained by such company, lessee, assignee, receiver, or other person running the same.
8-4-33-1. Construction along right-of-way
Any railroad corporation, lessee, or assignee or receiver, or other person or corporation,
running, controlling, or operating, or that may after July 18, 1885, construct, build,
run, control, or operate, any railroad into or through this state, shall, not later than
July 18, 1886, and within twelve (12) months from the date of the construction and
completion of any part of a line of road constructed after July 18, 1885, erect, build,
construct, and thereafter maintain fences, which may be constructed of barbed wire, on
both sides of such railroad throughout the entire length completed within the state of
Indiana, sufficient and suitable to turn and prevent cattle, horses, mules, sheep, hogs,
or other stock from getting on such road, except at the crossings of public roads and
highways, and within such portions of cities and incorporated towns and villages as are on
or after July 18, 1885, laid out and platted into lots and blocks, and shall also, in like
manner and within the time herein before prescribed, construct, where the same has not
already been done, and thereafter maintain, at all public road and highway crossings,
existing on July 18, 1885, or established after July 18, 1885, barriers and cattle guards
suitable and sufficient to prevent cattle, horses, sheep, hogs, and other stock from
getting on such railroad; Provided, however, when such fences and cattle guards are not
made as herein provided, or when such fence or cattle guards are not kept in repair, such
railroad corporation, or persons operating the same, shall be liable for all damages which
may be done by the agents, employees, engineers, or cars of such corporation or person
operating the same, to any such cattle, horses, sheep, hogs, or other stock thereon;
Provided, however, That such railroad corporation or other person operating the same shall
not be required to fence such railroad track through unimproved and unenclosed lands, and
the provisions of this chapter shall not apply to such parts and portions of any such
railroad which runs through unimproved and unenclosed lands, but when such lands become
improved and inclosed on three (3) sides, the same shall apply, and such railroad
corporation or person operating the same shall be required to fence the same under the
provisions of this chapter within six (6) months from the date of such inclosure.
8-4-33-5. Gates at farm crossings
All gates and bars at farm crossings, shall, in the absence of a contract or agreement to
the contrary, be constructed and maintained and kept closed by the owner of such farm
crossing.
8-6-14-2. Gates
When such railroad is fenced on one (1) or both sides at the point where such way is
constructed such owner shall erect and maintain substantial gates in the line of such
fence or fences across such way, and keep the same securely locked when not in use by
himself or employees.
8-6-14-3. Liability of railroads for animals killed
If animals are killed or injured on the track of such railroad by the cars or locomotives
thereof, the company owning or operating such railroad, shall not be liable to pay damages
therefor if such animal entered upon the track of such railroad through such gates, unless
it shall be proved that such killing or injury was caused by the negligence of the
servants of the company owning or operating such railroad.
8-17-1-2.1. Construction of cattle guards in certain counties
(a) In all counties with a population of less than fifty thousand (50,000), any person
through whose land any county highway is located may petition the county executive for
permission to construct a cattle guard or other device for the purpose of keeping
livestock on the property.
(b) In determining whether to grant permission, the executive shall consider the traffic flow on the highway and the cost of the erection of fences versus the cost of the construction of a cattle guard.
(c) The landowner shall bear the cost of construction and the erection of cattle crossing warning signs on the highway warning motorists that they are about to enter a cattle crossing area.
15-2.1-21-8. Running at large of livestock and poultry
A person responsible for livestock or poultry who knowingly or intentionally permits the
animal to run at large commits a Class B misdemeanor.
32-9-3-1. Advertising
Any person who shall take up any estray horse, mule, ass, sheep, hog, cattle or goat, or
any other article of value adrift, shall, within five [5] days thereafter, advertise the
same, in writing, in three [3] of the most public places in the township where such
property is taken up, stating the time of taking up, and giving a particular description.
32-10-2-1. "Lawful fence" defined
Any structure, including a cattle guard, hedge or ditch, in the nature of a fence, used
for purpose of inclosure, which is such as good husbandmen generally keep, and as shall,
on the testimony of skillful men, appear to be sufficient, shall be deemed a lawful fence.
32-10-2-2. Trespassing animals
If any domestic animal break into an inclosure or wander upon the lands of another, the
person injured thereby shall recover the amount of damage done, Provided, That in
townships where, by order of the board of county commissioners, said domestic animals are
permitted to run at large, it shall appear that the fence through which said animal broke
was lawful; but where such animal is not permitted to graze upon the uninclosed commons,
it shall not be necessary to allege or prove the existence of a lawful fence in order to
recover for the damage done.
32-10-2-3. Tender or offer to confess
If, before trial, the owner of such trespassing animal shall have tendered to the person
injured any costs which may have accrued, and also an amount, in lieu of damage, which
shall equal or exceed the amount of damages afterward awarded by the court or by a jury,
or shall offer, in writing, to confess judgment for the same, and if, notwithstanding, the
said injured person, refusing the said offer, cause the trial to proceed, he shall pay
costs, and recover only the damages awarded.
32-10-2-4. Taking up as an estray
When any domestic animal breaks into the enclosure of any person, the person, without
regard to the season of the year, may take up the animal as if an estray, whether the
owner is known to the person or not, and shall proceed as provided under IC 32-9-3 for
estrays, except as provided in this chapter.
32-10-2-5. Notice to owner
Such takerup shall, within twenty-four [24] hours after such taking up, give notice to the
owner of such animal, if known, and he can be immediately found.
32-10-2-6. Assessment of damages
Such takerup, before posting or advertising, shall procure from two [2] distinterested
freeholders an examination and assessment of damages, with a certificate of same,
including reasonable pay for such assessment.
32-10-2-7. What to be specified in notice
The fact of trespass in the inclosure of the takerup and the damages assessed, including
pay for assessing, shall be specified in such notice or advertisement.
32-10-2-8. Duty of owner before reclaiming
The owner may demand the trespassing estray from the taker up only if the owner proceeds
under IC 32-9-3-18 to prove the owner's property, pays the costs allowed in the case of
estrays, and pays the damages and the costs of assessment.
32-10-2-9. Trial when damages controverted
If the owner of the estray, at any time within five (5) days after the owner has had
notice of assessment of damages under section 7 [IC 32-10-2-7] of this chapter,
controverts the amount of damages or denies the trespass, the cause shall be docketed for
trial.
32-10-2-10. Trial and judgment
Either party may demand a jury; and such trial shall proceed and judgment be rendered and
execution issue, as in other cases.
32-10-2-11. Damages against owner -- Costs
If damages be assessed on such trial, such damages and all costs must be paid by the owner
before he recover his property.
32-10-2-12. Judgment against takerup
If the verdict or finding be that the trespass was not committed by the property taken up,
judgment shall go against the takerup for all costs and for such damages as may be
assessed.
32-10-2-13. Sale of animal -- Rights of takerup
When a trespassing estray is sold, the takerup, in addition to the usual costs and
allowances in the case of estrays, may retain, out of the value of such estray, the
damages sustained by such trespass and the costs of their assessment.
32-10-2-14. Damages when fence unlawful
In case of trespassing animal taken up, if the court or jury find the fence not lawful,
the animal shall be released and the occupant of the inclosure shall pay costs and
damages.
32-10-2-15. Payment for partition fence
When, by inclosure of uninclosed land, a fence already erected shall become a partition
fence, the person making such inclosure shall pay to the owner of the fence the value of
one half [ 1/2] of the same, as estimated by the owner.
32-10-2-16. Action -- Tender
If he refuse, the owner may bring suit for the same. But if the person making the
inclosure shall have tendered to him before trial, an amount equal to or large than the
damages awarded, together with costs accrued up to the date of tender, the owner of the
fence shall pay costs, and have only the damages assessed.
32-10-2-17. Joining fences
No person inclosing land that has heretofore lain open shall join his fence to that of
another, except by consent. If no consent be given, each shall give one half [ 1/2] the
width of a lane, or a reasonable distance, for the erection of a second fence.
32-10-2-18. Notice before removing partition fence
When any party shall cease to use his lands, or shall lay open his inclosures, he shall
not take away any part of his fence
which forms a partition fence between him and the inclosure of any other person, until he
shall have first given six [6] months' notice to such person or persons as may be
interested in the removing of said fence, of his intention to remove the same.
32-10-2-19. Fence erected by mistake
When any person shall, by mistake, erect any fence on the land of another, and when, by a
line legally determined, that fact is
ascertained, such person may enter upon such premises and remove the fence which he may
have made thereon, within six [6] months after such line has been run as aforesaid, upon
his first paying, or offering to pay, to the other party reasonable damages for injury in
passing over the soil in making such removal.
32-10-2-20. Fence not to be removed while crop is exposed
When the fence to be removed forms any part of a fence inclosing a field of the other
party, with a crop thereon, such first person shall not remove the same so as to expose
such field until such crop shall have been gathered and removed or secured from injury, or
might, with reasonable diligence, so have been gathered and secured; then he may
immediately remove such fence and materials, although more than six [6] months have
elapsed since such division line was run.
32-10-9-1. "Partition fence" defined
All fences now constructed and used by adjoining landowners as a partition fence or
fences, unless specially agreed upon by
such landowners, shall be deemed partition fences and shall be repaired, maintained and
paid for as herein provided.
32-10-9-3. Cost apportioned -- Township trustee building - - Streams
All partition fences shall be built, rebuilt, kept in repair at the cost of the several
landowners whose lands are inclosed or separated by such fences equally according to the
number of rods or proportion thereof such landowner may have along such line of fence,
whether his, her or their title be in fee simple or a life estate.
If any landowner, as above defined, shall fail or refuse to compensate for building,
rebuilding or repairing his, her or their proportion of fence, any landowner interested in
such fence, after having built, rebuilt or repaired his proportion of such fence, shall
give to the defaulting landowner, his agent or tenant twenty (20) days' notice to build,
rebuild or repair his proportion of such fence, as the case may be, and if such defaulting
party shall fail to build, rebuild or repair such fence within said time, such landowner
shall then notify the township trustee of the township wherein said lands are located of
such fact:
Provided, That where the fence sought to be established, rebuilt or repaired is on a
township line, in such case, the complaining landowner or landowners shall notify the
trustee of the township wherein the lands of the complaining landowner or landowners are
located of the improvement he or they may desire made, and such trustee shall have
jurisdiction of such matter, unless disqualified as hereinafter provided, estimate the
costs for such fence, building, rebuilding or repairing the same, as the case may be, and,
within a reasonable time after being notified, such trustee shall make out a statement and
notify such defaulting party of the probable cost of building, rebuilding or repairing
such fence, as the case may be, and if after twenty (20) days, said fence is not built,
rebuilt or repaired by such defaulting landowners, such trustee of such township shall
build, or repair such fence, as the case may be:
Provided, That such trustee shall use only the materials for such fences as are most
commonly used by the farmers of such community: Provided, further, That if such trustee of
such township is disqualified to act, then it shall be lawful and it shall be the duty of
the trustee of the adjoining township, residing nearest to where such fence is situated,
to act in the premises, upon receiving a notice so to do by any landowner interested
therein: also, Provided, further, That a lawful partition fence shall be a straight board
and wire fence or a straight wire or a straight board fence or a picket fence four (4)
feet high, a straight rail fence four and one-half (4 1/2) feet high, a worm rail fence
five (5) feet high, and all fences of every structure to be sufficiently tight and strong
to hold hogs, sheep, cattle, mules and horses:
Provided, further, That if a ditch or creek crosses the division line between two (2)
landowners, necessitating additional expense in the maintenance of the part over such
stream, if such landowners cannot agree upon the proportionate share of each, the township
trustee shall appoint three (3) disinterested citizens who shall apportion the partition
fence to be built by each landowner: Provided, further, That if any trustee is related to
any of the parties interested or is an interested party himself, then it shall be lawful
for the trustee of any other township residing nearest to where such fence is situated to
act in the premises:
Provided, further, That in all cases where a ditch or creek forms, covers or marks the
dividing line, or any part thereof, of the lands of separate and different landowners of
this state so that partition fences such as are required and provided for in this chapter
cannot be built and maintained on such dividing line, then, and in all such cases, such
partition fences shall be built and maintained under the provisions of this chapter as
near to such boundary line as may be, and each landowner shall be required, on his own
land, to build a separate partition fence, and to maintain the same at his own cost:
Provided, further, That in all cases where partition fences, such as are required and
provided for in this chapter, cross any ditch or creek and, by reason thereof, it is
impracticable to construct or maintain that portion of said fence as would cross said
ditch or creek as a stationary fence, then, and in all such cases, there shall be erected,
in lieu of such portion of said fence across said ditch or creek, and as a part of such
partition fence, floodgates or other similar structures, sufficiently high, tight and
strong to turn hogs, sheep, cattle, mules and horses or other domestic animals, and so
constructed as to swing up in times of high water, and such floodgates or other similar
structures shall be so built and constructed as to connect continuously such partition
fences: and,
Provided, further, That if the building and maintenance of such floodgates or other
similar structure occasions additional expenses and such landowners cannot agree upon the
character of floodgates or other similar structure, or upon the proportionate share of the
cost thereof to be borne by each, the township trustee, upon notice in writing from either
landowner of such disagreement and the nature thereof, shall appoint three (3)
disinterested citizens of said township who shall determine the kind of structure and
apportion the cost of such floodgate or other structure between such landowners, taking
into consideration the parts and portion of such fence being maintained by each landowner.
And the determination of a majority of such arbitrators of any matter or matters submitted
to them shall be final and binding on each landowner. The compensation of such arbitrators
shall be two dollars ($2.00) each, which shall be paid by said landowners in the
proportion they are ordered to bear the expense of such gate or structure. In case either
or both of such landowners shall fail to construct or compensate for constructing the
structure determined upon by such arbitrators in the proportion determined, within thirty
(30) days from such determination, such township trustee shall proceed at once to
construct such gate or structure and collect the cost thereof, including the compensation
of such arbitrators, from such defaulting landowner or landowners, in the same manner as
is provided for ordinary partition fences. And such floodgate or other structure shall be
repaired, rebuilt or replaced in accordance with the determination of said arbitrators.
Reviewed by AAHS in December 2001.
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