Liability for Damages Caused by Escaped Livestock

JurisdictionColorado,United States
CitationVol. 24 No. 7 Pg. 1581
Publication year1995
24 Colo.Law. 1581
Colorado Lawyer

1995, July, Pg. 1581. Liability for Damages Caused by Escaped Livestock


Vol. 24, No. 7, Pg. 1581

Liability for Damages Caused by Escaped Livestock

by Michael J. Turner

Increased population in Colorado seems to be causing an increase in automobile/livestock collisions, with resulting injuries and death. There may be some lack of knowledge among property owners, livestock owners, law enforcement officers, the public and the bar regarding the law in Colorado as it relates to liability for wandering livestock. The Fence Law at CRS § 35-46-101 et seq. and the case law derived from it form the basis of this article.

English Common Law

Under the common law of England, the owner of a trespassing animal was strictly liable for any harm caused by that animal. Although it is commonly assumed that the common law of England was adopted in Colorado in its entirety, this particular facet of the common law was not adopted.

In 1880, the Colorado Supreme Court rejected the common law on this subject in Morris v. Fraker,(fn1) The basis of that decision was that Colorado's soil and climate made it very difficult to fence cattle in because cattle are compelled to seek water. Because the court deemed it impossible to prevent cows from eating grass and grain that grow near water, the court held that it was necessary for farmers to construct fences to keep the cattle out. Furthermore, the court reasoned that earlier fence laws enacted by the territorial legislature and later by the Colorado legislature recognized that the English common law rule was inappropriate for Colorado.

Colorado's Fence Law

There was clearly tension early in Colorado's history between farmers and ranchers regarding which group would be responsible for building fences. Colorado passed the Fence Law mentioned above in 1877. However, it is interesting to note that as early as 1862, the territorial legislature had enacted a local option law that would have freed farmers from any obligation to fence or enclose land under cultivation. By 1864, however, the cattlemen had apparently gotten the upper hand, and another local option law was passed that provided farmers with a remedy for crop damage only if they had installed a "lawful fence."(fn2) This was the predecessor of the 1877 Fence Law.

In any event, as the Colorado Supreme Court stated in 1922:

The evident purpose of the Act is to require crops to be protected by a fence which will ordinarily turn stock, and so prevent stock owners from being harried by suits because of the trespass of their stock in cases where the crops are insufficiently protected.(fn3)

This early law resulted in Colorado being known as an "open range" state

However, that was not the end of the story. Liability for personal injuries or death caused by trespassing livestock was not addressed by the Colorado appellate courts until 1960. In Robinson v. Kerr,(fn4) the court held that the Fence Law, by its terms, had no application in an action for personal injuries caused by trespassing livestock. In Robinson, a horse escaped and trespassed on another person's property. While there, the horse kicked a young boy, putting his eye out. The court sidestepped Morris and held that the common law was abrogated only to the extent...

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