J. IN THE PROVINCIAL COURT OF SASKATCHEWAN CARROT RIVER, SASKATCHEWAN BETWEEN: PETER KORPACH and WALTER KORPACH Carrot River, Saskatchewan PLAINTIFF and CLARENCE KLASSEN Carrot River, Saskatchewan DEFENDANT Brian Fitzpatrick.. .Counsel for the Plaintiff Brendan M.Delehanty, Student at Law. For the Defendant JUDGMENT B.D. HALDERMAN, P.C.J. JUNE 8, 2000 BASIS OF CLAIM: [1] The Plaintiff’s claim against the Defendant is for crop damage sustained as a result of the Defendant’s cattle getting into the Plaintiff’s canola field in late July, 1999. [2] The Defendant admits that his cattle were in the Plaintiff’s canola crop on one occasion. The Defendant says that there is no evidence that his cattle were in the canola on any other occasion, and that such loss as was caused by his cattle is minimal. [3] In his pleadings, the Defendant denies any liability under s.27 of The Stray Animals Act, R.S.S. 1978, c. S-60, and further denies that he was negligent in looking after his cattle. [4] In my view, the law in Saskatchewan is clear that cattle owner is liable for such loss as is caused by the entry of his cattle onto the crop of another. Sections 27 (1) and (2) of The Stray Animals Act, R.S.S. 1978, c. S-60, provide as follows: “27(1) The owner of stray shall be liable to proprietor for any damage caused by the stray to the property of the proprietor.” “(2) No action for damages to property caused by an animal while lawfully running at large shall be maintained.” [5] Section of the Act allows rural municipality to pass by-law permitting animals to lawfully run at large during portion of the year. The parties agree that such by-law is not in effect in their rural municipality. [6] The present s. 27 (1) has been in the Act since 1977, when the Act was substantially re-written, apparently in response to the increasing urbanization of the province. Under both the present s.27 (1) and the pre-1977 statutes, the legal situation was the same -- the cattle owner is strictly liable for damage caused by his straying cattle. As noted by the Saskatchewan Court of Appeal in Osadchuk v. Russniak 1922 CanLII 215 (SK CA), 1922 CarswellSask 50; [1922] W.W.R. 829, the Act was enacted for the protection of crops. At para. (Carswell) the Court said the following with respect to the 1920 Act: “The effect of the Act is that if any animal is found running at large it may be distrained and impounded, whereupon the owner may redeem it by paying the costs and charges and the amount claimed for damages done to the distrainor ....”. (my emphasis) See also McKeen v. McKay 1945 CanLII 190 (SK CA), [1946] D.L.R. 495 497 (Sask. C.A.), where the Court held that once it was established that there was no by-law permitting animals to run at large, the liability of the cattle owner for crop damage was “beyond question”. [7] In fact, under The Stray Animals Act, the cattle owner’s liability for crop damage caused by his cattle may be absolute. As Fleming notes in dealing with cattle-trespass, (the common law predecessor of The Stray Animals Act) it is only an Act of God or some similar involuntary cause which might be sufficient to found cattle-trespass defence. See Fleming on Torts, 8th Edition, at pp. 354 357. No such defences are contained in The Stray Animals Act, nor have such defences been put forward in this case. BACKGROUND AND FACTS: [8] The Plaintiff Peter Korpach saw the Defendant’s cattle in his canola field on only one occasion, at the end of July, 1999. He took photographs of the cattle in the canola, which photos were filed as exhibits. The cattle were still at the edge of the canola some hours later, when the Defendant attended and drove them back to his adjacent pasture land. [9] The pasture in which the Defendant kept his cattle consisted of approximately quarter section, well fenced on the north, west and south. On the east side of the pasture, bordering the Plaintiff’s canola field, single-strand fence between the properties was in poor repair and was partially on the ground. Road access to this fence from the Defendant’s side was blocked by the Carrot River which runs in north-south direction, and bisects the pasture quarter so that approximately 2/3 is to the west of the river and 1/3 is to the east. [10] Because road access was blocked by the river, the Defendant had asked permission of the Plaintiffs some years earlier to cross the Plaintiffs’ land in order to repair the single-strand fence but the Plaintiffs had refused access. In my view, the Defendants were obliged to keep the fence in good repair, and the Plaintiff’s refusal has no bearing on liability in this case. [11] The Defendant Clarence Klassen said that he had been raising cattle for 10 years, and that in that period, he had never previously had cattle escape. His practice, he said, was to check his cattle’s whereabouts minimum of every three days, and that if he was away, he notified neighbour to check. In cross-examination, he said that he worked off-farm as an equipment operator, that he was at times away during the week, and that his wife helped him if he was away. He said that his brother Wilbert did not have any particular responsibilities at the farm, other than driving around. Klassen said that he finished baling at 5:00 a.m. Saturday morning (July 31) and he then drove to Estevan. He was contacted in Estevan concerning his cattle being at large, and he returned and drove the cattle back to his pasture early on Monday morning, August 1. [12] No evidence was put before the court as to whether other cattle were also in the Plaintiffs’ canola during the period in which the damage was caused. The Plaintiffs lived some miles from the canola field. Peter Korpach did not believe that other neighbours’cattle would have been in the canola. He had contacted other neighbours who had cattle, and in his opinion, those cattle were all accounted for and had not been on the Plaintiffs’ land. EXTENT OF CROP DAMAGE: [13] Within few days of the Defendant removing his cattle from the canola field, the Plaintiffs arranged for Larry Kapeller to carry out an assessment of crop damage. For 17 years, Kappeller has carried on mixed farming operation near Arborfield. From 1991 to 1995 he was an adjuster on contract to Saskatchewan Crop Insurance, and carried out many crop damage adjustments, including canola adjustments. Since 1995, he has provided verification audits, on contract, for provincial government farm programs, and has carried out canola seed-vigour assessments for seed companies. found him to be entitled to give opinion evidence with respect to crop damage and assessment of that damage. [14] On August 18, 1999 Kapeller spent to hours in the subject canola field. In accordance with his training, he measured off 28 separate plots throughout the field, of one yard by one yard each. In each plot, he physically counted all broken stems, pods on the ground, number of seeds in each pod, number of pods, and other visible damage. He provided the court with sketch showing the seven plot locations he finally determined as representative of the loss. He also did plant counts in at least undamaged plots. Based on these latter counts he estimated the expected yield for the field at 36 bushels per acre. His calculation of crop loss was as follows: 24 acres 11 bushels/acre damage 264 bushels acres 18 bushels/acre damage 90 bushels acres 29 bushels/acre damage 203 bushels 36 acres 557 bushels [15] Mr. Kapeller also did visual inspection by walking throughout the field. He observed cattle droppings at various locations, some relatively fresh and some apparently older. He also noted number of trails through the canola which in his opinion were made by cattle. His evidence was especially helpful regarding trampled area near tree stand to the north of the point where the cattle entered the land. With respect to damage possibly being caused by elk, he saw droppings and trails which suggested only “slight evidence” of elk. Significantly, he said that in viewing the field from his truck window when parked at the edge of the field, it would not appear that there was much damage. [16] found Mr. Kapeller to most careful and professional observer, whose methodology regarding adjustment procedures was meticulous. He was an independent witness whose evidence is entitled to great weight. [17] Dr. James Dynes was qualified as an expert witness, on behalf of the Defendant, with respect to the cause and extent of crop damage. Dr. Dynes holds Ph.D. in soil science and consults with respect to forensic agrology. [18] Dr. Dynes attended at the canola field on September 3, 1999. He looked at the field from the area of the downed single-strand fence, and proceeded short distance into the field. He did not do any plant counts. It was his opinion that most of the damage caused by the Klassen cattle occurred in an area close to the fence; that the trails he observed were of long standing; that he observed some signs of elk, which suggested that game travelled through the area; and that the crop as he observed it was what he would expect of canola crop in September. [19] Dr. Dynes took numerous photographs of the field, from his position near the fence, which were included in report he had prepared for an insurance company, and which report was filed with the court. [20] It was not suggested that Dr. Dynes was prohibited from going throughout the field. His visual observations, which were essentially “global” view without “hands and knees” look at actual damage throughout the field, must be accorded significantly less weight than the plot by plot count and the roaming of the field that Mr. Kapeller undertook. Based on Dr. Dynes’ evidence and his photographs, find that one of the trails directly east of the cattle entry point was part of an older trail, on which, for few feet, crop did not grow as vigorously as elsewhere. However, with respect to the extent of damage caused by cattle, prefer the evidence of Mr. Kapeller, and accept his specific crop-loss figures, and his estimate of crop yield. [21] With respect to whether other cattle contributed to the crop loss, the onus is on the Plaintiffs to establish the portion of the damage that was caused by the Defendant’s cattle. Subject to what hereinafter set out with respect to damage reductions due to other factors, conclude that the Plaintiffs have established that the Defendant’s cattle caused the entire crop loss which the Plaintiffs sustained. It is mere supposition that other neighbours’ cattle were in the canola during the relevant period. Given the knowledge that neighbours have of each other in rural Saskatchewan, it would be expected that the Defendant would have placed before the court some evidence supportive of his supposition. [22] Despite the Defendant’s opinion that his pasture was in good condition, that he adequately monitored his cattle, and that the cattle showed no signs of moving toward the canola crop, the fact remains that the cattle did move onto the canola field, unbeknownst to the Defendant, his spouse, his brother, or his hired help. This was so even though, as all parties agreed, canola is not crop of choice for cattle. The Carrot River did not prove to be an impediment on this occasion. There is no evidence credibly suggesting that water levels would have hindered the cattle on earlier occasions, any more that it hindered them on the day they were seen by Mr. Korpach in the canola field. As Dr. Dynes said, “cattle like to move around”. [23] In Falardeau v. Church (1973) 1972 CanLII 1063 (BC SC), 30 D.L.R. (3d) 614; 1972 CanLII 1515 (BC SC), [1972] W.W.R. 450 (B.C.S.C.); Mr. Justice Berger, in dealing with defendant’s suggestion that crop damage may have been caused by other herds of cattle, said, in holding for the Plaintiff, that “there was simply no evidence of this”. That is the situation in the present case, and accordingly decide that the Defendant’s cattle were in the Plaintiffs’ canola field on more than one occasion and that other cattle were not in the field. QUANTUM OF DAMAGES: [24] The Plaintiffs combined the canola, except for the plots used by Mr. Kapeller for his calculations, and binned the canola separately from their other canola. They did not measure, estimate or make note of the number of bushels or tonnes the field yielded. They sold load of canola in December, 1999, for which they received $5.48 per bushel. (No evidence was put before the court challenging this price, and accept it as the market value for damage calculation.) In my opinion, the Plaintiffs, having gone through the worthwhile exercise of having an independent adjuster examine the field, ought to have taken the minimal steps necessary to establish the actual yield. As careful as Mr. Kapeller’s evidence was, his estimate cannot displace the best evidence of yield, which is the actual crop harvested. would accordingly reduce the estimated yield, and the subsequent damages, by 5%, to account for this shortcoming. [25] also consider that the damages should be reduced on account of the wildlife trails. Those trails did not suggest extensive wildlife traffic, and Peter Korpach’s evidence was that there was never any wildlife damage to speak of. In all the circumstances, would put the reduction at 2%. [26] Had the Plaintiffs been able to combine the crop in the normal fashion, they would have been assessed dockage at the elevator. Based on the dockage set out on the cash ticket in evidence (5%) further reduce damages by 5%. [27] Finally, there ought properly to be reduction in damages to account for the Plaintiffs’ savings in not having to combine, truck, store, market and transport the canola. Ordinarily, and in the absence of evidence as to this cost, consider that 10% reduction ought to be applied. In this case, where the Plaintiffs had to combine most of the field but were put to the expense and inconvenience of having to combine around the numerous yard-square plots and poor areas, and combine those areas separately, reduce the damages by only 5% for this factor. RECAPITULATION OF CALCULATION OF DAMAGES: [28] Based on the evidence and on the above findings, I find the damages sustained by the Plaintiffs in this matter to be as follows:Total Crop Loss 557 BushelsPrice per bushel $5.48Total Value of Crop Loss $3,052.36Less 5% Reduction re Yield Calculation 152.62Less 2% Wild Animal Damage 61.05Less 5% reduction in Farm Expenses 152.62Less 5% for Dockage 152.62Net Damages Sustained by Plaintiffs $2,533.45 [29] Judgment in the amount of $2,533.45 is therefore granted in favour of the Plaintiffs, together with Pre-judgment interest from January 5, 2000 and costs. Dated at the City of Melfort in the Province of Saskatchewan this 8th day of June, 2000. THE HONOURABLE B.D. HALDERMAN JUDGE OF THE PROVINCIAL COURT OF SASKATCHEWAN
The plaintiffs claim for crop damage caused by the defendant's cattle entering the plaintiff's canola field. The defendant denies he is responsible or negligent, but admits his cattle were in the field.HELD: Damages were awarded in the amount of $2,533.45. The court valued the loss at $3,052.36. It then deducted 2% attributed to wild animal damage, 5% for the plaintiffs failure to calculate actual yield from the rest of the crop, 5% that the plaintiffs would have paid in dockage and 5% for the cost of production. Civil liability for crop damage caused by cattle flows from the Stray Animals Act. A cattle owner is strictly liable for damages caused by his straying cattle.  This liability may possibly even be absolute and only an act of god may serve as a defence. The issue here is the quantum of the damage. The fact that the defendant was refused access to the plaintiff's property to repair the fence has no bearing on liability in this case. An independent adjuster assessed the damage at 557 bushels. The court found on the facts that the damage was caused exclusively by the defendant's cattle on several occasions.