54-403. Trespassing animals; distraint; notice.

When any such stock is found upon the lands of another, it is lawful for the owner or person in possession of such lands to impound such stock. If the owner of the stock can be found, and is known to the distrainor, it is the duty of the distrainor to notify the owner by leaving a written notice at his or her usual place of residence with some member of the family over the age of fourteen or, in the absence of such person, by posting on the door of such residence a copy of the notice of the distraint of the stock, describing it, and stating the amount of damages claimed and the name of the arbitrator. The notice shall also require the owner within forty-eight hours after receiving such notice to take the stock away, after making full payment of all damages and costs to the satisfaction of the distrainor of trespassing animals. The notice may be in the following form:

You are hereby notified that on this ............... day of .............. 20...., your stock, of which I now have in my possession ............... (here describe the animal or animals) did trespass upon my land, and damage it to the amount of ............... . You are required to pay the above charges within forty-eight hours from the delivery of this notice or the stock will be sold as provided by law. I have appointed ............... to act as arbitrator should you not feel satisfied with the amount of damages claimed in the within notice.

No claim for damages shall be maintained by the distrainor without the notice contemplated in this section having been given when the owner is known by the distrainor of such stock.

Source

Annotations

1. Constitutionality

2. Notice

3. Award

4. Miscellaneous

1. Constitutionality

The herd law provides a reasonable method of procedure in the nature of an action in rem against trespassing stock and is constitutional. Randall v. Gross, 67 Neb. 255, 93 N.W. 223 (1903).

2. Notice

Mortgagee is not bound unless notified. Goff v. Byers Bros. & Co., 70 Neb. 1, 96 N.W. 1037 (1903).

Lienholder must comply with statute, and reasonableness of notice is a question of fact. Sloan v. Bain, 47 Neb. 914, 66 N.W. 1013 (1896).

Owner has forty-eight hours after receipt of notice in which to pay damages and take stock away, and no greater damages than amount specified in notice can be claimed. Allen v. Van Ostrand, 19 Neb. 578, 27 N.W. 642 (1886).

Notice and substantial compliance with statute necessary for right to enforce lien. Bucher v. Wagoner, 13 Neb. 424, 14 N.W. 160 (1882).

Notice must be given within reasonable time as determined by circumstances. Haggard v. Wallen, 6 Neb. 271 (1877).

Notice and demand must conform to statute. McAllister v. Wrede, 5 Neb. Unof. 82, 97 N.W. 318 (1903).

3. Award

Arbitrators' award is not a bar to action for negligence. Richardson v. Halstead, 44 Neb. 606, 62 N.W. 1077 (1895).

4. Miscellaneous

Act is superior to city ordinances. Lingonner v. Ambler, 44 Neb. 316, 62 N.W. 486 (1895).

Taker-up must comply substantially with requirements of statute or he will acquire no lien. Hanscom v. Burmood, 35 Neb. 504, 53 N.W. 371 (1892).

If person taking up stock does not comply with statute by refusing to select arbitrator, he acquires no lien and loses right to possession. Deirks v. Wielage, 18 Neb. 176, 24 N.W. 728 (1885).

Owner may replevin upon tender of damages. Shroaf v. Allen, 12 Neb. 109, 10 N.W. 551 (1881).

Owner must tender full amount. McAllister v. Wrede, 5 Neb. Unof. 82, 97 N.W. 318 (1903).