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HICKLAND v. ENDEE

September 28, 1983

Richard A. HICKLAND, Sandra L. Hickland, James S. Hickland (Minor born 11/8/73), John A. Hickland (Minor born 2/5/75), and Amanda Hickland (Minor born 10/14/76), Plaintiffs,
v.
R. H. ENDEE, Jr., personally and as a New York State Trooper, the Town of Argyle, County of Washington, State of New York, County of Washington, State of New York, the State of New York, United States of America, Defendants.



The opinion of the court was delivered by: MINER

MINER, District Judge.

I

 This action arises out of the alleged violations of plaintiff's civil rights by New York State Trooper R. H. Endee, Jr., the Town of Argyle and the County of Washington. *fn1" The action is brought pursuant to 42 U.S.C. § 1983, and jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. A trial to the Court was had on January 5-7 and 18-19, 1983. *fn2" The final submissions of counsel were filed on May 25, 1983.

 II

 In 1969, Richard Hickland commenced farming in Argyle, New York, on property which later became known as Beaver Brook Farms. *fn3" The primary operation of the farm consisted of raising Hereford cattle. *fn4" On December 16, 1976, Terry Gray, a neighbor of the Hickland farm, advised New York State Trooper James Dean that he had been involved in an accident with one of Richard Hickland's animals. (Transcript, p. 537). The accident occurred on McClay Road, adjacent to the Hickland farm. Upon investigation, Trooper Dean discovered a dead Hereford lying on the west shoulder of McClay Road approximately 150 feet north of the Alice Hickland residence. (Transcript, p. 538). Later that evening, Dean telephoned Richard Hickland at his home in Salem, New York and spoke to Sandra Hickland, Richard's second wife. Trooper Dean advised Mrs. Hickland to have the dead cow removed from the road. (Transcript, pp. 538-39).

 On December 17, 1976, defendant Robert Endee received a telephone complaint from Alice Hickland about a dead animal on the shoulder of McClay Road. (Transcript, pp. 113-15). Endee then interviewed Mrs. Hickland, who advised him that the cow belonged to Beaver Brook Farms. (Transcript, pp. 115-16, 215-16). Thereafter, Endee travelled to the Hickland farm and examined the dead Hereford but could find no markings which conclusively would identify its owner. Endee then contacted Dr. Leith Skinner, the Town of Argyle Health Officer, who apparently authorized Endee to "act as his agent" in seeing that the cow was removed. (Transcript, p. 559). Accordingly, Endee drove ten miles to Richard and Sandra Hickland's residence in Salem, New York, and instructed Richard Hickland to remove the dead animal by sundown of the next day.(Transcript, pp. 118-19). Specifically, Trooper Endee informed Richard Hickland

 that if the bull was not removed by sundown on the following day, that the Town would remove it, the Town Highway Department, and that he would be charged the fee for their time and cost. (Transcript, pp. 133-34). *fn5"

 Additionally, Endee informed Richard Hickland that some of his cattle were loose on McClay Road. (Transcript, pp. 134, 255).

 Richard Hickland responded that he had to attend a funeral out of state the next day but that "he would see what he could do about it." (Transcript, pp. 133, 254). Satisfied with this response, Endee "considered the case closed." (Transcript, p. 220). Hickland testified also that, later that evening, he drove to Beaver Brook Farms in an attempt to comply with Endee's instructions but that he could find neither the dead cow nor any roaming animals.(Transcript, p. 255). He further testified that all the gates used to fence in his cattle were securely closed.

 The next day (December 18th), Richard Hickland left for Connecticut. That night, Trooper Endee returned to McClay Road to check if the dead cow had been removed.(Transcript, p. 139). Endee testified that the dead cow had not been moved and that other live cattle still were running loose on McClay Road. (Transcript, p. 149). Trooper Endee again returned to the farm on Sunday the 19th to see if the dead cow had been removed. Endee testified further that he went to the farm for the additional purpose of taking the deposition *fn6" of Terry Gray needed to support an information charging Richard Hickland with criminal nuisance. (Transcript, pp. 151-52). By this time, the dead cow had been removed by the Town Highway Superintendent, Robert LaFoy. (Transcript, p. 150).

 That evening, Trooper Endee filed two informations with Judge McWhorter, the town justice, charging Richard Hickland with a violation of § 12-b of the New York Public Health Law *fn7" and § 240.45 of the New York Penal Law. *fn8" Based on these informations, *fn9" Judge McWhorter issued a warrant for the arrest of Richard Hickland. Additionally, after conferring with the town supervisor and the highway superintendent, Judge McWhorter decided that the presence of Hickland livestock on the highway posed enough risk of danger to warrant impounding the loose cattle. (Transcript, p. 159). On Monday, December 20, all of the Hickland cattle were rounded up and transported to Miller's Livestock Market.

 Sometime on the 20th of December, Richard Hickland arrived at the State Police Substation in Salem to inquire as to the whereabouts of his cattle. (Transcript, p. 172). After telling Hickland that his cattle had been impounded, Trooper Endee advised him that he was under arrest for violations of the Penal Law and the Public Health Law, but permitted Hickland to drive his family home before placing him in custody. Hickland was arraigned later that day before Judge McWhorter. (Transcript, pp. 174-75).

 Nearly three weeks later, on January 7, 1977, there was another accident near the Hickland Farm allegedly involving one of Richard Hickland's cows. Trooper Endee was instructed by his superior, Sergeant Russell Guard, to proceed with an investigation already commenced by two other New York State Troopers. Sergeant Guard apparently requested the efforts of Trooper Endee due to his familiarity with "the information and the law," having "previously handled the situation with Mr. Hickland." (Transcript, p. 188). This second accident, reported to have occurred at 2:40 A.M. on January 7, 1977, involved a collision between an automobile driven by Carol Guard (Sergeant Guard's teenage daughter) and a stray Hereford bull. The accident occurred on County Route 49 near both the Hickland farm and the home of Thomas Hughes. The two troopers who originally investigated the accident reported a statement by Hughes that the bull belonged to Richard Hickland. Accordingly, Trooper Endee interviewed Hughes on January 14, 1977 and obtained from him a deposition stating the following:

 That on January 7th, 1977 at about 2:40 A.M. a Hereford bull, belonging to the Hickland Farm, was struck by a car operated by Carol Guard, on County routy [sic] ...


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