Colorado's Fence Law: An Overview of Open Range & Fence Out Concepts, 0314 COBJ, 2014, March, Pg. 29

AuthorKate A. Burke

43 Colo.Law. 29

Colorado's Fence Law: An Overview of Open Range and Fence Out Concepts

Vol. 43, No. 3 [Page 29]

The Colorado Lawyer

March, 2014

Animal Laws

Colorado's Fence Law: An Overview of Open Range and Fence Out Concepts

Kate A. Burke

Animal Law articles are sponsored by the CBA Animal Law Committee. Coordinating Editor

Kate A. Burke, Durango, of Colorado Animal Law, LLC—(970) 385-7409,

About the Author

Kate A. Burke owns and practices law with Colorado Animal Law, LLC in Durango. She is co-chair of the CBA Animal Law Committee—(970) 385-7409, kburke@coloanimallaw. com, www. coloanimallaw. com.

Landowners' and livestock owners' relative rights and obligations regarding containment of livestock derive from a historic, complex area of law. This article examines Colorado fence law and the concepts of "open range" and the "fence out" duty, from 1877 to the present.

Ask anyone interested in the rural parts of this state about livestock management, and the response will likely be that Colorado is an "open range" or "fence out" state. Inquire into the meaning of "open range" and the "fence out" duty, and things quickly get murky. For example, the Colorado Department of Agriculture website states: '"Open range' is a definition of land, not a law,"1 but does not elaborate on that definition. There is no statutory or judicial codification of the widely held concept of "open range." There also is no authoritative definition of "open range land" outside statutes and case law.

In the absence of clear legal authority, the popular imagination develops ideas about the meaning of open range law. Many livestock owners and attorneys believe that the open range principle means any unfenced property is fair game for livestock grazing. These colloquial understandings of the law are incomplete or inaccurate, but they are not obsolete matters; bitter disputes still arise about grazing and property boundaries, based on sometimes strongly held but unexamined ideas about the law.

In fact, the idea of open range, and the correlative burden on landowners to fence out livestock, result from a collection of statutes and case law that has been developing and evolving since the Territorial era. Still, today's practitioner may well have clients facing significant legal issues around fencing and grazing.

This article examines the primary set of authorities comprising Colorado's fence law, seeking to elucidate the scope of and the limitations on the open range principle and landowners' duties to fence livestock out of their properties. A truly comprehensive treatment of all legal issues facing livestock owners and their neighbors is beyond the scope of this article; the law is centuries old and is still developing. Nonetheless, this article provides guidance with which to frame an inquiry into livestock grazing and property boundary issues when advising clients.

Historical Development of the Fence Law

The concepts of open range and the fence out duty come largely from statutory provisions, most of which are contained in Title 35 of Colorado Revised Statutes, Article 46, and collectively called the "fence law." The heart of the fence law is currently found at CRS § 35-46-102.

A form of the fence law predated Colorado's 1876 statehood, but the first official state of Colorado fence law was enacted in 1877 and said:

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.2

Thus, in Colorado's earliest days, landowners were given what appears to be a stark choice: fence others' livestock out or surrender claims for liability based on trespass. However, nuances to that concept have developed overtime.

The fence law arose out of the conflict among 19th century cattle ranchers, sheep herders, and crop farmers in the West. The cattle industry depended on driving large herds across vast expanses, moving from pasture to market. Meanwhile, settlers were moving into the area and planting crops and gardens. The ranchers—and, many would say, practical reality—largely won out; the General Assembly passed the fence law, protecting ranchers from liability for damage to crops and gardens unless the farmer had built an adequate fence. Clearly, the feasibility of protectively fencing one's finite crop lands far outstrips the possibility of containing livestock when they wander or are driven over hundreds or thousands of miles.

The 1877 law required ratification by each county. Before some counties had done so, grazing issues were analyzed in court under the common law rather than the statute.[3] Colorado common law of the era was defined by the custom of "permitting . . . animals to range upon the commons and unoccupied lands."4 This was an important departure from English common law, which required livestock owners to confine their animals.5 Once the fence law became the law of the state, it abrogated the common law and defined certain rights and obligations vis-a-vis fences and livestock.6

An interesting historical note is the fence law's applicability; two definitions evolving in the statute yield over time an ambiguity. In 1917, the first definition of "animals" for fence law purposes was given as "cattle, horses, mules and asses."[7] When the statute was significantly amended in 1953, the term "livestock" replaced "animals" and was defined as "horses, cattle, mules, asses, goats, sheep, swine, buffalo and cattalo."8 Thus, it would appear that the fence law rights and duties now apply to all of those types of animals.

However, it is important to also consider the statutory definition of a lawful fence. Before the 1953 amendments, the definition of a lawful fence was very specific and complicated, with reference to available and common building materials of the times.9 In the 1953 amendments, and today, a lawful fence is defined as "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."10 A three-strand barbed wire fence sufficient to turn back horses and cattle is not likely to deter sheep and goats. Thus, a strict reading of the statute suggests that the owner of sheep, which easily could go through a lawful fence, might be liable in trespass to the landowner, despite the apparent protections of CRS § 35-46-102. There appears to be no judicial opinion that has considered or resolved this ambiguity; it is worthy of note in advising either landowners or owners of goats, sheep, swine, and other, smaller animals within the definition of livestock.

Limitations on Fence Out Obligations and Liability Protections

From the statute described above, we develop the common descriptor of Colorado as a fence out state. Under the statute, a landowner cannot recover trespass damages from livestock incursions unless he or she has fenced them out with a statutory fence.

The landowner's fence out duty is probably, in turn, the root of the concept of open range. If landowners or farmers have the burden to build fences to keep livestock out, a corollary idea arises: in the absence of fences, open land belonging to others may be available for grazing without liability to the livestock owner. However, the law is not as sweeping as it may appear.

As a preliminary matter, it is interesting to note that the title of the main fence law provision is "Owner may recover in trespass."11 The law is often cited as protecting livestock owners from liability, which it does in certain circumstances, but its title suggests that one of its primary purposes is to define when the livestock owner can be liable for trespass.

From very early days, courts noted that there are limits to a landowner's fence out burden and the livestock owner's attendant protections. In fact, as explained below, there can be trespass liability for livestock owners even where a landowner does not have a lawful fence in place. The development of the fence law has concurrently recognized protections for the livestock industry, while preserving landowners' rights to exclude others from their property.12

Permission Required to Graze on Public Lands

One confusing issue under the fence law is the status of public lands or the public domain. By the early 20th century, courts provided some clarity about whether public lands are necessarily open range lands.

The most expansive early judicial statement about grazing in Colorado came from the Colorado Supreme Court in Morris v. Fraker in 1880, which was issued before the 1877 fence law had been fully ratified throughout the state.13 Considering a case out of El Paso County before it adopted the fence law, Morris analyzed the common law, which it defined as "permitting the owners of cattle to allow them to range at will."14 However, this proclamation dealt specifically with "the commons and unoccupied lands."15 In discussing commons and unoccupied lands, the Morris Court noted that only 2 million of the state's 66 million acres were then "subject to taxation," and stated that "the commons are now owned principally by the State and by the general government."16

The Morris discussion might suggest that government-owned lands were considered freely available for grazing if not fenced, but any such idea was soon dispelled. In Light v. United States, the U.S. Supreme Court, reviewing Colorado law, noted that:

The United States can prohibit absolutely or fix the terms on which its property may be used . . . [a]s it can with[h]old or reserve the land, it can do so indefinitely.[17]

Grazing on public land...

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