40-28-1      Permitting adult male animal to run at large as petty offense.
40-28-2      Castration lawful for adult male animal running at large--Liability for unauthorized castration.
40-28-3      Running at large defined.
40-28-4      Liability for trespass by livestock--Exception where fence inadequate.
40-28-5      Trespass liability not applicable to unfenced lands within national forests.
40-28-6      Notice to livestock owner of injury from trespass.
40-28-7      Retention of trespassing livestock until damages paid.
40-28-8      Notice to owner of seizure of trespassing animals.
40-28-9      Security given by owner for release of trespassing animals held for damages.
40-28-10      Livestock owner's bond to be approved by sheriff--Release of animals--Sheriff's fee.
40-28-11      Notice to sheriff when livestock owner fails to take up trespassing animals--Sheriff to take possession and care for animals.
40-28-12      Sheriff's lien for expenses.
40-28-13      Unauthorized taking of animal from person with lawful possession as misdemeanor.
40-28-14      Recovery of animals from sheriff by giving bond and paying costs.
40-28-15      Foreclosure of lien by sheriff's sale of animals--Service of notice on parties.
40-28-16      County reimbursement of sheriff for costs not recovered from sale--Recovery from owner of animals.
40-28-17      Actions by county and landowner for costs and damages--Application of proceeds of sale.
40-28-18      Civil action for damages from trespassing animals--Venue--Procedure.
40-28-19      Repealed.
40-28-20      Limitation of actions for damages.
40-28-21      Surplus proceeds of sale--Disposition.
40-28-22      Dismissal of action when defendant is not owner or person in charge of animals--Treatment as estrays.
40-28-23      Damages and expenses recovered by landowner.
40-28-24      Judgment against plaintiff when no damage sustained.
40-28-25      Judgment as lien on trespassing animals.
40-28-26      Exemptions limited to absolute exemptions.

40-28-1. Permitting adult male animal to run at large as petty offense.

It is a petty offense for the owner or person in charge of any stallion over the age of eighteen months, or any bull over the age of ten months, or any ram or boar over the age of eight months to permit the same to run at large.

Source: SDC 1939, §§ 40.1311, 40.9920; SL 1977, ch 190, § 530.

40-28-2. Castration lawful for adult male animal running at large--Liability for unauthorized castration.

It shall be lawful for any person to castrate or cause to be castrated any animal described in § 40-28-1 found running at large; but if any person shall castrate any stallion, bull, ram, or boar, and it shall be proved that such animal was not of a class of stock prohibited from running at large by § 40-28-1, such person shall be liable for damages to the amount of the value of such animal so castrated.

Source: SDC 1939, § 40.1311.

40-28-3. Running at large defined.

For the purpose of §§ 40-28-1 and 40-28-2 the term "running at large" shall mean intentionally left outside of the inclosure of a legal fence, and off of the lands owned or controlled by the owner of such animal.

Source: SDC 1939, § 40.1311.

40-28-4. Liability for trespass by livestock--Exception where fence inadequate.

Except as in this chapter otherwise provided, any person owning or having charge or possession of any buffalo, horses, mules, cattle, goats, sheep, or swine that trespass upon the land, either fenced or unfenced, owned by or in possession of any person, or being cropped by any person injured by such trespass, is liable to any such person injured for all damages sustained by reason of the trespass. No person is liable under this chapter if the person injured has maintained an inadequate partition fence and notice thereof has been given pursuant to § 43-23-5 or if the person is not required to build the fence because of frozen earth pursuant to § 43-23-7.

Source: CCivP 1877, § 747; SL 1883, ch 115, § 1; SL 1885 (Spec. Laws), ch 17, §§ 4, 5; CL 1887, § 5569; RCCivP 1903, §§ 817, 829, 830; SL 1907, ch 244, § 1; RC 1919, §§ 2921, 2922; SL 1919, ch 350; SL 1921, ch 405; SL 1933, ch 6; SDC 1939 & Supp 1960, § 37.2401; SL 1978, ch 286; SL 2001, ch 224, § 1.

40-28-5. Trespass liability not applicable to unfenced lands within national forests.

No person is liable for damages caused by buffalo, horses, cattle, mules, goats, or sheep owned by the person, that trespass upon lands within the exterior boundaries of the Black Hills and Harney National Forests, if the lands were not at the time of the trespass enclosed by a legal fence, as defined in §§ 43-23-3 and 43-23-4.

Source: SL 1933, ch 6; SDC 1939 & Supp 1960, § 37.2401; SL 2001, ch 224, § 2.

40-28-6. Notice to livestock owner of injury from trespass.

The person claiming injury from trespass of livestock, before commencing action thereon shall notify the owner or person having in charge such livestock, of the injury and probable amount of the damages, provided he knows to whom such livestock belongs.

Source: CCivP 1877, § 749; SL 1885 (Spec. Laws), ch 17, § 6; CL 1887, § 5571; RCCivP 1903, §§ 819, 831; SL 1907, ch 244, § 3; RC 1919, § 2923; SDC 1939 & Supp 1960, § 37.2402.

40-28-7. Retention of trespassing livestock until damages paid.

Any person suffering injury from trespass of livestock may retain and keep in custody such offending animal or animals until the damages and costs are paid, or until good and sufficient security be given for the same.

Source: CCivP 1877, § 750; SL 1885 (Spec. Laws), ch 17, § 7; CL 1887, § 5572; RCCivP 1903, §§ 820, 832; SL 1907, ch 244, § 4; SL 1917, ch 371; RC 1919, § 2924; SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403.

40-28-8. Notice to owner of seizure of trespassing animals.

Whenever any animal or animals are restrained under § 40-28-7, the person restraining the same shall forthwith notify the owner or person in whose custody the same were at the time the trespass was committed, of the seizure thereof, providing the owner or person who had the same in charge is known to the person making said seizure.

Source: CCivP 1877, § 750; SL 1885 (Spec. Laws), ch 17, § 7; CL 1887, § 5572; RCCivP 1903, §§ 820, 832; SL 1907, ch 244, § 4; SL 1917, ch 371; RC 1919, § 2924; SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403.

40-28-9. Security given by owner for release of trespassing animals held for damages.

The security required by § 40-28-7 shall be in the form of a bond or other undertaking, signed by the owner of the trespassing animal or animals and shall run to the person claiming damages. The bond or other undertaking shall be for twice the amount of damages claimed and in no case less than one hundred dollars.

Source: SL 1917, ch 371; RC 1919, § 2924; SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403; SL 1983, ch 290, § 1.

40-28-10. Livestock owner's bond to be approved by sheriff--Release of animals--Sheriff's fee.

If the person aggrieved is not satisfied with the sufficiency of the bond and the parties cannot agree, a bond shall be furnished and shall be approved by the sheriff and after his approval the person holding the trespassing animal or animals is required to turn them over to the owner. Failure to do so makes him a trespasser. The owner of the trespassing animal or animals shall pay the sheriff five dollars for approving the bond and the owner shall be taxed with the costs if a suit is instituted later.

Source: SL 1917, ch 371; RC 1919, § 2924; SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403; SL 1983, ch 290, § 2.

40-28-11. Notice to sheriff when livestock owner fails to take up trespassing animals--Sheriff to take possession and care for animals.

If the owner or person who formerly had the animals in charge is unknown, or if he neglects or refuses for three days after receiving notice as provided in § 40-28-8 to take up the animals or to furnish the bond provided for in § 40-28-9, then the person restraining the animals may, instead of retaining them in his own custody, notify the sheriff of the county in which the animals were taken. It is the duty of the sheriff, within three days after receiving notice, to take the offending animals into his possession and to handle them in the same manner as estray animals under the provisions of chapter 40-29.

Source: SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403; SL 1983, ch 290, § 3.

40-28-12. Sheriff's lien for expenses.

The sheriff has a lien upon animals taken into his possession pursuant to § 40-28-11 for the expenses incurred by him as outlined in chapter 40-29.

Source: SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403; SL 1983, ch 290, § 4.

40-28-13. Unauthorized taking of animal from person with lawful possession as misdemeanor.

Every person who takes or attempts to take any animal, restrained under the provisions of this chapter, from the possession of the person having the same in charge, without the consent of such person, except by due course of law, is guilty of a Class 2 misdemeanor.

Source: SL 1885 (Spec. Laws), ch 17, § 12; RCCivP 1903, § 837; SL 1907, ch 244, § 9; RC 1919, § 2928; SDC 1939 & Supp 1960, § 37.9904; SL 1977, ch 190, § 531.

40-28-14. Recovery of animals from sheriff by giving bond and paying costs.

The owner or person having in charge animals taken into the sheriff's possession pursuant to § 40-28-11 may recover the same from the sheriff at any time before the sale by paying all damages and costs or by furnishing to the sheriff the bond provided for in § 40-28-9 and at the time of furnishing such bond, paying to the sheriff the costs and disbursements already incurred.

Source: SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403.

40-28-15. Foreclosure of lien by sheriff's sale of animals--Service of notice on parties.

If possession of animals taken into the sheriff's possession pursuant to § 40-28-11 shall not be recovered from the sheriff by the owner or person who had the same in charge as provided in § 40-28-14, within three days after such taking, then the sheriff shall forthwith proceed to foreclose the lien provided by § 40-28-12 by a sale of the animals taken, upon the notice and in the manner provided by law for the foreclosure of chattel mortgages. If the owner or person having such animals in charge is known, such sale may be had upon three days' notice to be given by the sheriff to such owner or person having such animals in charge and to any person or persons holding a lien of record against such animals, such notices to be served in the same manner as provided for service of summons in civil actions.

Source: SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403.

40-28-16. County reimbursement of sheriff for costs not recovered from sale--Recovery from owner of animals.

If the proceeds of a sale pursuant to § 40-28-15 shall be insufficient to reimburse the sheriff for his costs and disbursements as provided in § 40-28-12, then the county shall reimburse the sheriff for such costs and disbursements as he may have expended in the taking, caring for, and sale of the animals in excess of the amount received from such sale, and the county may recover in a civil action, any amount so expended by it from the owner or person having such animals in charge at the time of such taking.

Source: SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403.

40-28-17. Actions by county and landowner for costs and damages--Application of proceeds of sale.

The county and the person suffering damage from such trespass may sue jointly or severally for their several costs, expenses, and damages; provided that the receipts of the sale shall be applied in the following manner: first, in payment of costs, expenses, and disbursements of the sheriff and any remainder shall be paid to the clerk of the circuit court to be applied upon the payment of any judgment thereafter secured by the person suffering damage, provided that such action shall be brought in the proper court within sixty days from the date of such sale.

Source: SL 1921, ch 404; SL 1925, ch 294; SDC 1939 & Supp 1960, § 37.2403.

40-28-18. Civil action for damages from trespassing animals--Venue--Procedure.

Damages under § 40-28-4 may be recovered in a civil action, in any court having jurisdiction thereof in the county where such damage may have occurred, and the proceedings shall be the same as in other civil actions, except as modified in this chapter.

Source: CCivP 1877, § 747; SL 1883, ch 115, § 1; SL 1885 (Spec. Laws), ch 17, § 5; CL 1887, § 5569; RCCivP 1903, §§ 817, 829, 830; SL 1907, ch 244, § 1; RC 1919, § 2921; SL 1919, ch 350; SL 1921, ch 405; SL 1933, ch 6; SDC 1939 & Supp 1960, § 37.2401.