Good Fences Make Good Neighbors
A Comparison of Livestock Containment Laws
in Wyoming, Colorado and Montana
Wyoming State Bar Annual Meeting – September 16, 2016
Amy Mowry
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Act of February 25, 1885, 23 Stat. 321 (43 U.S.C. Ch. 25, §§ 1061‐1066)
“All inclosures of any public lands in any State or Territory of the United States … are declared to be unlawful; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any State or any of the Territories of the United States, without claim, color of title … is likewise declared unlawful, and prohibited.”
U.S. v. Douglas‐Willan Sartoris Co., 22 Pac. 92 (Wyo. 1889)
• Suit under the fencing act of 1885 against U.P.R.R. grantee
• Fence on grantee’s land blocked public domain
• Court says that’s okay
Camfield v. U. S., 167 U.S. 518 (1897)
• Defendants build fence on owned alternate sections in Colorado, enclosing 20,000 acres of public domain.
• Court disagrees with Sartoris: “Considering the obvious purposes of [the fence], and the necessities of preventing the enclosure of public lands, we think … that it is within the constitutional power of Congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual.”
Anthony Wilkinson Livestock Co. v. McIlquam, 83 Pac. 364 (Wyo. 1905)
• Owner may build fences on his land
• Motive is immaterial
Fence Out Doctrine Codified
• Montana – 1865
• Colorado – 1877
• Wyoming ‐ 1882
Wyo. Stat. § 11‐28‐102 – What is a “lawful fence”?
• Specific description – can be barbed wire (at least 3 strands) or a combination of wire, poles, rails, stones, hedge plants or other material “which upon evidence is declared to be as strong and well calculated to protect enclosures, and is as effective for resisting breaching stock as those described in subsection (a) of this section…”
• Requirements stiffer for hay corral fence outside field or pasture enclosed by lawful fence as defined
Wyo. Stat. § 11‐28‐103 – Unlawful wire fence
• Penalties if animals are harmed
• Must reconstruct unlawful fence into lawful fence
• Fines accrue
Garretson v. Avery, 176 P. 433 (Wyo. 1918)
As a general rule, where no obligation rests upon a land owner to fence out another's livestock, or to prevent them from straying or entering upon his land, "the owner of uninclosed lands is under no duty to make or keep them in safe condition for stock straying thereon."
Wyo. Stat. § 11‐28‐108 ‐ Liability for breach
• Animal owner is liable for damage caused
• Owner of breached field may retain animals
• Can settle in court or through arbitration
Wyo. Stat. § 11‐24‐108 • Prohibits allowing livestock to run at large in any fenced public highways, and forbids picketing on a public highway right‐of‐way from one hour before sundown to one hour after sunrise
• Exception for livestock drifting into lanes or fenced roads in going to or returning from their accustomed ranges
Andersen v. Two Dot Ranch, Inc., 49 P.3d 1011
(Wyo. 2002)
• The mere presence of an animal on the highway did not constitute the owner's negligence per se on a posted open range highway
Wyo. Stat. § 30‐1‐123 ‐ Protection from mining shafts
• Mining shafts, pits, holes, inclines etc. on public domain must be securely covered covering “in a manner to render them safe against the possibility of livestock falling into them or in any manner becoming injured or destroyed thereby; or by forthwith making a strong, secure and ample fence around such shafts and other openings aforesaid.”
• Fines of imprisonment (up to 90 days) and/or fines, plus value of damages to livestock
Chicago, Burlington and Quincy Railroad Co. v. Cash, 157 P. 701 (Wyo. 1916)
• Owner of cattle is presumed to know that the railroad is not compelled to fence its tracks within incorporated towns
• Owners of cattle who permit their animals to roam upon railroad tracks at points where fences cannot be maintained cannot recover for injuries to such cattle unless an actual or constructive intent to commit the injury is shown
Wyo. Stat. § 37‐9‐304 ‐ Fences and cattle guards
• Railway corporations must construct, maintain and keep in repair a sufficient fence which meets or exceeds department of transportation fencing standards . . . But not required to construct and maintain a fence within the boundaries of any incorporated city or town
• Any railway corporation in violation is liable to owners of livestock injured or killed for value (Wyo. Stat. § 37‐9‐305)
Colorado Fence Laws
• First official law enacted 1877 (1877 General Laws, Chap. V 1203, § 2): “Any person making and maintaining in good repair around his or her enclosure, any fence, such as described in section 1 of this act, may recover in a suit for trespass . . . from the owner of any animal or animals, which breakthrough any such fence.” • Animals may “range upon the commons and unoccupied lands.” Morris v. Fraker, 5 Colo. 425 (1880)
• C.R.S. § 35‐46‐102 – recovery from trespassing animals where “lawful fence” exists (as described in § 35‐46‐101)
• C.R.S. § 35‐46‐101 – “Lawful fence” is a well‐constructed three barbed wire fence with substantial posts set at a distance of approximately twenty feet apart, and sufficient to turn ordinary horses and cattle, with all gates equally as good as the fence, or any other fence of like efficiency. • “Livestock” includes horses, cattle, mules, asses, goats, sheep, swine, buffalo, and cattalo, but does not include “alternative livestock” as defined in section 35‐41.5‐102 (1)
• No protection for overstocking (can be trespass) ‐
Lazarus v. Phelps, 152 U.S. 81 (1894)
• No protection for willful trespassers ‐ Norton v. Young, 40 P. 156 (Colo. 1895)
• Stockowners may range their stock at large; the duty of protecting crops is placed upon the farmer ‐
Schaefer v. Mills, 209 P. 643 (Colo. 1922)
• Maintenance of lawful fence is essential to recovery ‐
Bolten et al. v. Gates et al., 100 P.2d 145 (Colo. 1940)
• Court declines to address whether fence law allows a limited, metropolitan‐area exemption ‐ SaBell's, Inc. v. Flens, 627 P.2d 750 (Colo. 1981)
• Does not apply to action for personal injuries inflicted by trespassing animals ‐ Robinson v. Kerr, 355 P.2d 117 (Colo. 1960)
C.R.S. § 35‐46‐105 ‐ Grazing on roads & municipalities
• Similar to Wyoming law – willful killing or injuring by motorist bears liability; exception for livestock being driven or if animals are within restricted areas unbeknownst to owner
C.R.S. § 35‐46‐106 ‐ It is the duty of any person who takes any animals into custody under the provisions of this article to feed and care for such animals in a reasonable, careful, and prudent manner…
C.R.S. § 35‐46‐107 ‐ It is unlawful for any person to willfully break down or cause to be broken down any fence or gate or to leave open any gate in such fence…
C.R.S. § 35‐47‐101 ‐ Horses and mules may not run at large within certain distances from cities and towns (greater distance required for more densely‐populated areas); exceptions for driving to any from market or pasture; grazing within established commons
C.R.S. § 35‐48‐103 ‐ Inferior bulls or rams may not run at large; “inferior bull” is any bull not registered or eligible for registration as a purebred animal; special restriction on dairy bulls
C.R.S. § 35‐46‐111. Right‐of‐way fences
• Department of transportation has a duty to maintain right‐of‐way fences constructed as of June 1, 1994…
• Statutory purpose is to keep highways and motorists safe ‐ Moldovan v. State, 829 P.2d 481 (Colo. App. 1991), aff'd, 842 P.2d 220 (Colo. 1992); state's negligence must be proved under general principles of negligence and not on the theory of negligence per se
Partition fences
C.R.S. § 35‐46‐112. Owners of bordering tracts are responsible for half the costs of building a lawful fence between the tracts under C.R.S. § 35‐46‐113; Mosher v. Schumm, 166 P.2d 559 (Colo. 1946) (statutory procedure must be followed to recover costs from neighbor)
Wyo. Stat. § 11‐28‐106 ‐ Construction of lawful fence between two separately‐owned properties may require split of construction costs; can recover costs through court action
C.R.S. § 40‐27‐102 – Railroad must fence right‐of‐way & install cattle guards
• Similar to Wyoming law
• C.R.S. § 40‐27‐103 – absolute liability if failure to fence as required
• See also, M.C.A. § 69‐14‐701 – “Railroad corporations shall build and maintain a legal fence on both sides of their track and property and maintain cattle guards at all crossings over which cattle or other domestic animals cannot pass…”
Aspen Springs Metropolitan District v. Keno 369 P.3d 716 (Colo. App. 2015)
“The Fence Law is not a license for livestock owners to graze their animals anywhere they please. Rather, the statute provides a defense to liability for damages caused by a non‐willful trespass; it does not eliminate the underlying trespass or injury…”
Montana Fence Laws
• M.C.A. § 81‐4‐101 ‐ Legal fences defined: Specific requirements; can include barbed wire (at least 3 strands) or woven wire, boards, rails, poles, electric fences (three or more wires), and “rivers, hedges, mountain ridges and bluffs, or other barriers over or through which it is impossible for stock to pass”
• M.C.A. § 81‐4‐103 ‐ Any person constructing or maintaining any fence of any kind not described in 81‐4‐101 is liable in a civil action for all damages caused by reason of injury to stock resulting from such defective fence.
Larson‐Murphy v. Steiner, 15 P.3d 1205 (Mont. 2000)
Held: Livestock owners may have a duty to keep their animals from wandering onto highways (later overturned)
M.C.A. § 27‐1‐724 ‐ A person owning, controlling, or in possession of livestock or a person owning property has no duty to keep livestock from wandering on highways and is not subject to liability for damages to any property or for injury to a person caused by an accident involving a motor vehicle and livestock unless the owner of the livestock or property was grossly negligent or engaged in intentional misconduct.
M.C.A. § 81‐4‐201 ‐ It is unlawful for an owner or person in control of swine, sheep, llamas, alpacas, bison, ostriches, rheas, emus, or goats to willfully permit the animals to run at large.
M.C.A. § 81‐4‐215 ‐ Liability of owners of stock for trespass: “If any cattle, horses, mules, asses, hogs, sheep, llamas, alpacas, bison, or other domestic animals break into any enclosure and the fence of the enclosure is legal, as provided in 81‐4‐101, the owner of the animals is liable for damages to the owner or occupant of the enclosure if the owner or person in control of the animals was negligent
M.C.A. § 81‐4‐203 ‐ Open range defined: In 81‐4‐204, 81‐4‐
207, and 81‐4‐208, the term “open range” means all lands in the state of Montana not enclosed by a fence of not less than two wires in good repair. The term “open range” includes all highways outside of private enclosures and used by the public whether or not the same have been formally dedicated to the public.
M.C.A. § 60‐7‐201 ‐ Grazing livestock on highway unlawful
Dunbar v. Emigh, 158 P.2d 311 (Mont. 1945)
• Expectation of wandering cattle, even where overstocked, does not equal willful trespass.
• Overt and unlawful act is required
• No requirement to fence in one’s own livestock
References
• Anderson, Terry L. and Peter J. Hill, The Not So Wild Wild West: Property Rights on the Frontier; (Stanford: Stanford University Press, 2004)
• Hine, Robert V. and John Mack Faragher, The American West: A New Interpretive History (New Haven: Yale University Press, 2000)
• Limerick,Patricia Nelson, The Legacy of Conquest: The Unbroken Past of the American West; (New York and London: W.W. Norton & Company, Inc., 1987).
• Linklater, Andro, Measuring America: How the United States Was Shaped by the Greatest Land Sale in History; (New York: Walker & Company, Inc., 2002)
• Milner II, Clyde A., Carol A. O’Connor, Martha A. Sandweiss, Eds.; The Oxford History of the American West, Eds. (New York and Oxford: Oxford University Press, 1994)
• Rundle, S.L., “The Once and Future Federal Grazing Laws”; William & Mary Law Review, Volume 45, Issue 4, Article 8, pp. 1803‐1838.
• Scott, Valerie Weeks, “The Range Cattle Industry: Its Effect on Western Land Law”; Montana Law Review, Volume 28, Issue 2 (Spring 1967), pp. 155‐185.
Thank You!
Amy Mowry, Esq.
[email protected]
Denver, Colorado
www.mowrylaw.com