Field, forest and game belong together!

Farmers and forest owners have a legitimate interest that game damage is kept low or compensated. But also the hunter must do everything possible to avoid unpleasant surprises in the game damage contractually transferred to him in the hunting lease.

Costs for the afforestation of fallow land amount to approx. 10,000.00 € / Ha. PEFC standards must be adhered to. If this is not to be ruined by red, roe and mouflon deer, game damage must be kept to a minimum, especially on these areas. Particularly in the first three to five years, it is on roe deer until "the plants have grown out of the aeser".

Rioters, who degrade the hunters to pest controllers without the existing precinct system and demand with light hand the total shooting of all roe deer with all means, do not become fair this conflict of interests. But also the hunters must be ready for new ways off a "so on".

Legal bases for game damage regulation

These can be found in the various state hunting laws, state hunting ordinances and state ordinances for the implementation of state hunting laws and the Federal Hunting Act. Compensation is paid for game damage caused by cloven-hoofed game, e.g. wild rabbits or pheasants, on land belonging to a common hunting district or affiliated to a common hunting district; there are many exceptions to this rule. In principle, the hunting cooperative is liable for compensation. Unless the hunting leaseholder has assumed this obligation in the hunting lease agreement, which is very often the case.

How can hunters defend themselves against claims for compensation for damage caused by game?

Farmers, forest owners and hunting leaseholders should plan new plantings and protection measures in a binding manner, if possible by mutual agreement. Interval hunting of roe deer especially at the calamity areas and shooting of wild boar is the responsibility of the hunters, whereas the forest owner and the farmer can and must support as listed in the following agreement, if he wants to successfully claim game damage if necessary. Only such a goal-oriented cooperation guarantees a good future for forest with game. The best way for the parties to agree on the joint procedure is, for example, as follows:

Example text for a game damage agreement

Example text for an agreement regarding game damage to maize and meadow areas and forest areas in the area of the hunting cooperative Y

Between farmer Mr. X, .... of the hunting cooperative Y as lessor, the hunters of the hunting district ...., ....

Due to the damage caused by game in the past to the maize and meadow areas as well as the forest areas in the area of the hunting cooperative ... the parties take the following measures to prevent game damage:

The farmer Mr. X informs the person(s) authorized to hunt in good time - at least three days before sowing and harvesting of e.g. corn - about the upcoming work, so that the hunters can take appropriate measures or remove e.g. game fences accordingly in autumn.

The farmer Mr. X leaves a strip of min. 70 cm free around each maize field, so that the hunters can set up an electric fence against wild boar damage. The hunters can create sight lines to the forest edge, hunting aisles, hunting facilities and stanchions on the fields. For this crop loss, Mr. X receives __________ € / hectare per year.

The hunters put up against the game damage in each case an electric fence around the currently ____ known corn fields and maintain it accordingly.

The farmer Mr. X sprays the area of the fence with permissible plant killers according to his care of the corn fields, so that the maintenance effort for the hunters is reduced accordingly. Excluded from this arrangement are areas where plant protection products may only be used in a restricted manner and thus the fence must be mowed clear in this area.

The hunters inform the owners / tenants of the areas of the game damage, especially in corn and meadow areas and afforestation areas in written form at short notice upon detection - see attachment below. In this case, the time of the damage settlement is also determined.

Hunting is supported by creating planting and hunting aisles in forestry crops, cutting the crops free to facilitate hunting, and providing information about new planting plans at an early stage. Trail and visitor guidance should be established at the new planting areas. Walkers, mountain bikers, and other forest visitors should also be made aware of these calamity areas. (For this, see the so-called Bechen Declaration of the Rheinisch Bergischer Kreis hunters' association, see www.ljv-nrw.de )

Ongoing communication between hunting leaseholders and land and forest owners, e.g. annual joint inspections for further coordination, is implemented regularly.

Further measures ...

Information on game damage

Game damage on a grassland / maize area

Forest area

Field / forest area: ----------- Area size ca.__________ sqm

Damaged trees/plants: ____________________

The damage shall be settled by _____________________________ (month/year), at the latest before spring of the next year.

The undersigned undertakes to contact the responsible owner / tenant / farmer at an early stage in order to settle the damage.

Musterstadt, den _______Signature hunting leaseholder:

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According to § 1 para. 2 of the Federal Hunting Act, the hunting leaseholder has the duty to avoid game damage as far as possible. Hunters should make concrete proposals to the farmer and the forest owner to reduce the damage.

Often the farmer / forest owner is reluctant to cooperate to avoid game damage to corn and meadow areas or browsing damage to forest areas. He will then not conclude an agreement. However, the farmer and the forest owner must also cooperate with the hunting leaseholder to avert the threat of contributory negligence. Regarding the mutual obligations of the parties, we summarize some opinions from literature and case law, see in more detail: essay RA Jürgen Reh in RdL 01/2020:

Section 254 of the German Civil Code is based on the legal idea that the party who disregards the care that appears necessary in the situation to protect himself from damage must accept the loss or reduction of his damage claims up to 100%.

A claim-excluding contributory negligence shall affect the farmer/forest owner who undertakes certain sowings or plantings where, according to the situation of the chosen land ("situational constraint") and according to the choice of the crop to be sown, excessive damage from game is to be expected with certainty.

It is forbidden to strive for the highest possible yield without regard to the situation-bound nature of a plot of land. Of course, the farmer cannot be prescribed what to grow on his land. However, in the event of (predominant) contributory negligence, this freedom of cultivation methods may mean that he is not entitled to compensation for damage caused by game.

The Federal Court of Justice is also of the opinion that, as an expression of the social obligation of property (Article 14 (2) of the German Basic Law), game damage by the owner must be accepted to a certain extent without compensation anyway. The extent of this obligation is determined by the location and nature of the property, as well as its integration into the landscape and nature, i.e. its "situation". Acceptance of certain damage caused by game is therefore basically an expression of the social obligation.

The farmer is also partly to blame if, without considering the situation and knowing that an area cannot be hunted (corn up to the edge of the forest, no planting distance of 6 m to the property boundary in the forest), he foregoes the creation of effective hunting opportunities, for example by creating hunting aisles in the main crop and visual strips between the main crop and the edge of the forest. In addition, keeping the edge areas that are not part of the managed property clear is a matter of course.

Examples of contributory negligence of the farmer from German case law

• Failure to cultivate the land properly, for example by plowing in soil crops or plowing under chopped, unharvested corn with subsequent grain sowing (Schwerin Regional Court; judgment of November 8, 2002, 6S 269/01
• Failure to lay out hunting aisles in the main crop and visual strips between the main crop and the edge of the forest (Belling in Staudinger: Kommentar zum BGB, Neubearbeitung 2008, § 835 BGB, Rn. 3)
• obviously game-damage endangered cultivation (district court Garmisch- Partenkirchen in Rdl 1968, 243; district court Bad Segeberg in MDR 1952, 167); e.g. particularly game-damage endangered crop at a forest edge known to be game-damage endangered (Englaender in AgrarR 1976 p. 40)".

Game damage prevention is thus not only required of the hunting tenant, but also of the farmer and forest owner. The § 32 BJG is to be interpreted analogously in such a way that the managing farmer must make protective measures possible and must tolerate these. Section 254 of the German Civil Code (BGB), "Mitverschulden" (contributory negligence), goes even further and requires cooperation in the prevention of damage. According to the BJG, depending on the susceptibility of the crop to damage, a greater or lesser duty to cooperate is required.

In order for contributory negligence to apply, hunters should document exactly which mitigation measures the damaged farmer/forest owner refused to take, when, where and how, in the presence of whom. In this regard, documentation that is as complete as possible is always useful. About how to document, especially in the case of corn, photo documentation is always the best; either from an elevated position or by drone.

And if it then goes into the procedure and the lawsuit after all

Pitfalls of the preliminary proceedings (NRW)

First of all, it must be checked whether liability for game damage has been transferred to the hunting leaseholder at all by effective agreement in the hunting lease contract.

A further prerequisite is a proper preliminary procedure. A defective preliminary procedure in the case of game damage leads (under certain circumstances) to the inadmissibility of the action for payment of game damage, e.g. § 35 para. 1 NRW State Hunting Law.

In the following we present an exemplary examination of a game damage in grassland. Different deadlines and requirements apply to damage in forests.

A proper game damage report of game damage in grassland requires that the injured party informs the responsible authority according to § 34 BJG within one week when he has determined which damage at which place on which plants, so that the administrative authority is enabled to assess this damage with regard to type, extent and time of origin and to estimate the damage caused by game. Only if the extent, location and type of the individual damages are precisely documented and assessed is sufficient distinguishability ensured. Doubts are at the expense of the injured party. In order for the administrative authority and the game damage expert commissioned by it to be able to concretely assess the reported damage, it must be possible to distinguish it from older damage, whether reported or not, and from more recent damage that has not yet been reported. Especially on areas that have already been affected by game damage several times, a control rhythm of one week should be appropriate.

Depending on the federal state, a settlement procedure may be interposed in the wake of the notification.

In the absence of an amicable settlement, the authority then immediately schedules an on-site meeting with the contracting parties (including the hunting association) and the local game damage assessor.

Under no circumstances should the injured party agree to collective appointments, as he will then be in considerable need of evidence in subsequent court proceedings.

And he should have the report confirmed in writing each time. All this presupposes, of course, that he checks his grassland at least once a week. A bound register with corresponding entries and confirmation by witnesses is advantageous, as this can be presented to the court as documentary evidence.

A long time interval of more than 2 months between the notification of the damage and the actual appointment at the place of damage is of such great importance because it is no longer possible to distinguish between old damage that may be subject to compensation and that was not notified in time. In this respect, the legislator has made a clear provision in § 37 para. 1 LJG NRW, according to which an appointment at the place of damage must take place without delay.

The term "without delay" is legally defined in the context of the challenge in § 121 para. 1 sentence 1 BGB and means "without culpable hesitation". This indeterminate legal term is concretized in the LJG NRW to the effect that a maxim of concentration and acceleration must be observed for the entire preliminary proceedings. This is because the preliminary procedure loses its objective if it is not carried out quickly by the responsible municipality. Cf. Thies/Müller-Schallenberg, JagdR Nordrhein-Westfalen, p. 278e.

The purpose of scheduling an appointment at the place of damage as soon as possible is not only to exhaust all possibilities of an amicable settlement, but also to initiate a damage assessment without delay, if necessary. In the context of the LJG NRW, immediate therefore means as soon as possible. This means that an on-site meeting is to be scheduled within a maximum of 48 hours and carried out within a further maximum of 48 hours. Cf. Thies/Müller-Schallenberg, JagdR Nordrhein-Westfalen, p. 278d. The aggrieved party should absolutely refuse so-called collective appointments at a later date.

However, if the appointment is scheduled e.g. only months after notification of damage, the characteristic immediate is clearly no longer fulfilled. As a result, it is also no longer possible to distinguish between old and new damage, as there is no longer a temporal connection.

This also makes it impossible for the expert involved in the preliminary proceedings to differentiate between new damage that is subject to compensation and old damage that is no longer subject to compensation. The plaintiff's representation, according to which this differentiation was unproblematically possible, comes again and again so to speak reflexively, but is not sufficient.

A late summons exclusively to an estimation date does not meet the requirements at all.

If possible, the game damage assessor should be summoned to the first assessment date and be present. The parties involved, especially the claimant, should request this immediately. The preservation of evidence is extremely important for the enforcement of claims! Summonses and minutes should be checked carefully.

Course of the on-site visit

At the beginning but also in the course of the on-site visit, the representative of the authority tries to reach an amicable agreement. The game damage assessor determines the amount of damage and prepares a protocol with the name and type of cultivation of the property, type of game and extent of the damage according to the size of the area and the result, the amount of damage. A certain margin of judgment lies in the nature of the matter. The explanations also include graphical and photographic representations of the extent of the damage as well as the surrounding situation (see VG Cottbus, judgment of 27.08.2015 - 3 K 935/13).

From this, the authority issues a preliminary decision with instructions on how to appeal.

If none of the parties files a complaint against it, the preliminary decision becomes final.

The damages are based on the total monetary loss in accordance with Section 249 of the German Civil Code (BGB), because it is no longer possible to restore the status quo ante. And also the costs of the proceedings are part of the damage; even if again and again the municipalities would like to divide these costs by applying § 40 para. 3 LJG NRW.

This would also be inequitable because it would discourage the injured party from reporting small-scale damage due to the cost burden to be feared. And then the farmer later has the problem of demarcating old damage from new damage with certainty of proof. As a result, the entire claim for damages is no longer enforceable.

See also: AG Siegburg, judgment of 16.2.2011 118 Ca 186/10; AG Meschede 6 C 50/17 of 27.6.2017.

Legal action

In any legal action, it must be examined whether the preliminary proceedings required under Section 36 (1) LJG NRW were not carried out properly in accordance with Sections 36-41 LJG NRW and whether there is a serious defect in this respect, and whether the amount of damages was assessed correctly.

If necessary, as a hunting leaseholder, one should also take the chance of a legal dispute. It is sometimes instructive in the long run for the allegedly injured party if the amount of damages coincides in contributory negligence or if formal deficiencies in the preliminary proceedings cause difficulties.

Game damage estimation - preliminary assessment, evidence

For the procedure we refer to the essays

https://ljv-hessen.de/wp-content/uploads/2017/05/Wildschadensregulierung2.pdf

https://www.gstb-rlp.de/gstbrp/Forsten und Jagd/Jagdgenossenschaften/Aufs%C3%A4tze/Wildschaden und Wildschadensregulierung/Rechtliche Grundlagen und das Verfahren beim Wildschadensersatz (Schriftenreihe LWK RLP, pdf)/Rechtliche_Grundlagen_Wildschadensersatz.pdf

The standard work on the subject: Game and hunting damage compensation, manual for damage settlement with calculation bases and tables, published by Carl Link Verlag September 2017, loose-leaf, 470 pages; 978-3-556-75400-9 (ISBN).