§ 11-28-108 — Liability for breach into lawful enclosure by animal; civil action or arbitration

(a) Any person owning or having in his possession or
charge any livestock or domesticated buffalo which breaches into
any lawful enclosure belonging to someone other than the owner
of the animal, is liable to the party sustaining the injury for
all damages sustained by reason of such breaching. Damages may
be recovered in a civil action before any court having
jurisdiction, or by arbitration, each party to select a property
holder and the two (2) arbitrators to select a third. The
arbitrators shall be sworn before a judge of a circuit court
before entering upon their duties. The arbitrators shall
carefully examine the fence and assess the damage done, examine
witnesses under oath, one (1) of them to administer the oath to
the witnesses, and make a written report signed by at least two
(2) of the arbitrators, to the circuit court in the county in
which the damage is sustained. The finding of the arbitration,
as provided for in this section, shall within three (3) days
after rendered, be filed with a judge of a circuit court in the
county where the trespass was committed, who shall enter the
cost upon his docket and proceed to issue execution therein as
in other cases originally commenced before him.
(b) The party sustaining the damage shall notify the owner
or person having in charge the offending animals, of the damage
and the probable amount if he knows to whom the animals belong
and if the owner or keeper resides within the county where the
damage was committed.
(c) The person suffering damage may restrain and keep in
custody as many of the offending animals as are equal in value
to the damage done, until the finding of the court or
arbitration is ascertained, unless before suit the amount of his
claim and expense of keeping the animals is tendered to him.
(d) If, upon trial of any action under subsection (a) of
this section, it appears the plaintiff's enclosure is a lawful
fence, he shall be allowed to prove the amount of damage
sustained and if he has retained in custody the animals
committing the damage, the amount of expense incurred for
keeping the animals. Any judgment rendered for damages, costs
and expenses against the defendant shall be a lien upon the
animals committing the damage. If it appears upon trial that the
plaintiff's enclosure is not a lawful fence or that no damage
was sustained, judgment shall be rendered against the plaintiff
for costs of suit and damages sustained by defendant.
(e) If upon trial it appears the defendant is not the
owner or person in charge of the offending animals, he shall be
discharged from the action with his costs, and the suit may
proceed against a defendant whose name is unknown. If, at the
commencement of the action, the plaintiff does not know the name
of the owner or keeper of the offending animals, he may bring
suit against a defendant unknown.