Request By:
Mr. Steve Yontz, Director
Division of Law Enforcement
Department of Fish and Wildlife Resources
#1 Game Farm Road
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Penny R. Warren Assistant Attorney General
You described a recurring situation in which fox hunters release their hounds from public roads or small tracts of land where they have secured permission to hunt, yet these hunters know the hunt will not be confined to the above-described property but will instead traverse several miles of farm land and other private property for which no consent to hunt has been given. You indicate the hunters themselves carefully avoid entering this private property and that they call their dogs out at the conclusion of the hunt. You then asked the following questions:
"Can the person who releases the dogs be prosecuted for trespass when his dogs run on property where no permission to hunt has been granted?
"To what degree is the dog's owner responsible for damage caused by dogs released as above running through enclosures holding livestock? "
In our opinion, the answer to the first question, concerning criminal liability of the hunter for the dog's trespass, is "no." KRS 150.993(2) provides as follows:
"Any person who enters upon the enclosed lands of another to shoot, hunt or fish without the oral or written consent of the owner or occupant shall be fined not less than fifteen dollars ($15.00) nor more than one hundred dollars ($100.00)." while "person" is not defined in KRS Chapter 150, a widely recongnized definition for purposes of criminal law is found in KRS 500.080(12) and states as follows:
"'Person' means human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental authority."
Since the hunter never enters and there is no other entry by any "person" as required by the statute, a critical element of the crime is lacking. KRS 511.070 and 511.080, criminal trespass under the Penal Code, similarly require entry by a "person."
It is interesting to note that the legislature has seen fit to impose fines on persons who permit cattle to run or trespass on certain public lands but apparently no broader criminal liability for trespassing animals has been imposed. KRS 259.200, 259.990(3).
With regard to the property owner's remedies against the dog owner for damages resulting from certain harassment or injuries to livestock, we are unable to render an official opinion since this is a private legal matter. See: KRS 15.020, 15.025, 40 KAR 1:010 and 1:020.
We hope this information is of some assistance to you.