21 March 2014
Written By: R.L. Adams, L.L.C., Attorney at Law September 29, 2004
In my equine law practice, I often provide legal advice to clients who want to recover a horse from the possession of someone who has taken it from them, or who refuses to return it to them.
Sometimes the horse has been taken by someone who claims that they own the horse. Often the horse is being held by someone claiming that its owner owes them money.
Understandably, these horse owners often want to file a criminal complaint against the possessor of the horse with local law enforcement. After all, in most situations, taking property from its owner without permission or refusing to return property to its owner upon demand are known as “stealing,” and people get arrested for it.
Driving up to the barn where their horse is being kept, with a deputy sheriff who will order that the horse be returned, is just the kind of quick forceful action these clients want to take. Unfortunately, in my experience, law enforcement officials are very reluctant to get involved in situations in which the ownership or right to possession of a horse are disputed.
The excuse I generally hear is, “That’s a civil matter,” meaning that they are declining to treat the matter as a criminal one in which a criminal offense has been committed. What is often missing in such situations is evidence of criminal intent – that is proof that the possessor of the horse knows that he or she has no legal right to take or keep the horse. Without the cooperation of the local sheriff’s department and district attorney’s office successfully prosecuting a horse theft as the crime of larceny is practically impossible.
Handling the theft as a civil matter is not a good option for the victim of horse theft. It means that the horse owner usually must hire an attorney to file a legal action (called a “claim and delivery”) in “civil court” to recover the horse. This procedure is costly, can take weeks or months to complete, and can require that the owner post a bond for the value of the horse (or even more).
To maximize the possibility of being able to convince law enforcement to investigate the matter as criminal rather than civil horse owners should plan ahead to ensure they will be able to present law enforcement with evidence that the person in possession of their horse did commit a crime and that there is no mistake or legal right to justify their actions. Being able to do the following could make the difference.
1. Prove you own the horse. This means two things; first being able toconclusively identify the horse you want to recover as the one which you claim to own, and second, proving that you are the actual owner of that horse.
Some horses are so unique in appearance, even to non-horse owners, that there can be no issue about whether you or the owner of the horse is mistaken as to the identity of the horse. Others however are generally similar and could reasonably be mistaken. Freeze branding, tattooing or implanting a readable magnetic chip can prevent the possessor of the horse from claiming that you are mistaken about the identity of the horse or that she took or kept the horse mistakenly believing it to be her own.
The best proof of actual ownership is documents, such as a bill of sale or sales contract which conclusively identifies the horse. A horse’s breed registration papers (unlike a motor vehicle title) do not necessarily prove ownership. Other evidence of ownership such as vet records naming you as the owner or photographs of you with the horse at various places may be helpful, but do may not be sufficiently conclusive to encourage law enforcement to get involved.
2. Disprove any claim of lien for past due board or other legal rights.
Any person or facility in the business of providing board to a horse may claim a legal interest in a horse (called a “lien”) for past due board provided to that horse. If a valid lien exists some states (including North Carolina ) permit the lien holder to keep possession of the horse until the board is paid or the owner has posted a bond with the local court.
Bogus claims of past due bills for board can be avoided by using a written boarding contract which set out how much is to be charged as board and for what services. Contracts used in other circumstances in which you are temporarily turning over possession of your horse to another should specify that a lien is not created for any money due under the contract and that the possessor must return the horse upon demand.