Colorado's Fence Law - Revisited
Colorado, like many other western states, is a "fence out"
state. Our fence law consists of a series of statutes that were
passed since the late nineteenth century. Colorado’s fence law
has served our state in a reasonable manner for more than 100
years. The following discussion is an overview of how this law
came to pass, some of its most important aspects, and examples
of how Colorado courts have interpreted it.
How Colorado’s current fence laws came to be-
Colorado’s common law in regard to fence provides that the owner
of trespassing livestock is strictly liable for damages caused
by his or her livestock (SaBell’s, Inc. v. Felens, 627 p. 2d 750
(Colo. 1981)). Therefore, it was in the best interest of early
Colorado livestock owners to fence in, or enclose all animals so
as not to be liable for any damages they caused.
However, in the 1880's the Colorado Legislature passed a fencing
statute (C.R.S. § 35-46 et seq.) that superseded the duty of
landowners under Colorado common law. Instead of having to fence
livestock in, landowners became responsible for fencing
livestock out if they desired to preserve their land. Thus, in
order to collect damages caused by trespassing livestock, the
owners of the land trespassed upon must have in place a lawful
fence.
Colorado’s Statute on Fence Law
Lawful Fence
C.R.S. § 35-46-101(1) defines a "lawful fence" as a
"well-constructed three barbed wired fence with a substantial
post 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..."
Fence Out Provision
(C.R.S § 35-46-102)
This is the central component of Colorado’s fence law. It
contains three sections which state the duties of landowners and
the liabilities of livestock owners. The fence out provision is
sensitive to the needs of Colorado ranchers. In Schaefer et al
v. Mills case, the Colorado Supreme Court stated that: the
policy of the law is to favor stock owners, and permit them to
range their stock at large. The duty of protecting crops is
placed upon the farmer. The evident purpose of the act is to
require crops to be protected by a fence, which will ordinarily
turn stock, so as to prevent stock owners form being harried by
suits because of the trespass of their stock in cases where the
crops are insufficiently protected (Schaefer et al, v. Mills,
209 p. 644 (Colo. 1922)).
Section 1
Part one of the fence out statute states that: any person
maintaining in good repair a lawful fence, as described in C.R.S.§
35-46-101, may recover damages for trespass and injury to grass,
garden or vegetable products, or other crops of such person from
the owner of any livestock which breaks through such fence.
Even though such land, grass, garden or vegetable products or
other crops which were not at such time protected on all sides
by a lawful fence, if it is proved by clear and convincing
evidence that livestock have broken through a lawful fence on
one side of such land to reach such land, grass, products or
crops, recovery and the remedies under this section may be had
the same as if such land, grass, products, or crops had been at
such time protected on all sides by a lawful fence (C.R.S.§
35-46-102 (1)).
Therefore, the owner of land cannot collect damages caused to
his property by trespassing livestock unless: 1) he or she
maintains a "lawful fences," and 2) he or she can prove that the
trespassing livestock in some way compromised the integrity of
such fences. C.R.S. § 35-46-102(1) also allows full damages to
be awarded to the landowner whose land is not entirely enclosed
by a lawful fence, so long as it can be proved that the
trespassing livestock did pass through a lawful fence to get
onto the property.
Section 2
C.R.S. § 35-46-102 (2) states that a livestock owner is not
always protected from liability when his stock enters another’s
land. Firstly, a stock owner who grazes his animals on unfenced
land must not place more animals on the land than it can
support, with regard to both forage and water. If a landowner’s
livestock trespass upon neighboring lands, fenced or unfenced,
in search of forage or water, the owner will be liable for the
trespass of his or her animals. Secondly, a livestock owner is
prohibited from placing his or her livestock upon land which he
or she has no right to use. Any stock owner who unlawfully uses
unfenced land will be deemed a trespasser and be liable for any
damages caused by his or her livestock.
Section 3
C.R.S. § 35-46-102(3) grants that any damages caused by
trespassing livestock may be recovered along with the costs of
arbitration. The trespassing livestock may also be taken up and
held as security for the payment of damages. Finally, in cases
where the "...injury complained of has been aggravated and
attended by a willful or reckless disregard of the injured
person’s rights, the board of arbitration, court, or jury may
include reasonable exemplary damages."
Areas of Liability
C.R.S. § 35-46-102(1) only protects ranchers from the
non-willful trespass of stock. Therefore, a livestock owner is
liable for damages if he or she willfully drives his or her
stock onto the unfenced land of another. If this occurs, the
owner of the stock will be held liable for actual and exemplary
damages.
Many ranchers may be under the impression that Colorado’s fence
law statute shields them from personal injury caused by their
livestock. This is not true! Although there are twelve states
that do consider fences to be personal liability shields,
Colorado is not one of them. A livestock owner is not liable for
property damages caused by his stock to unfenced land; however,
he or she is certainly liable for any personal injury that is a
result of his trespassing stock.
One example of this might be if a rancher’s bull enters an
unenclosed area and begins to eat and/or trample a garden. The
owner of the garden tries to drive the bull away and is kicked.
The kick from the bull breaks the owner’s leg. In this case, the
owner of the bull would be liable for the personal damages
caused to the other party; however, he would not be liable for
the damages caused to the garden itself.
Lastly, the fence out statute does NOT protect stock owners from
personal liability or property damages when their stock causes
injury on a highway. However, the plaintiff must demonstrate
that the stock owner was negligent in allowing his or her stock
to be present on a highway.
In 1993, a Douglas County jury awarded the victim of an accident
involving cattle on a state highway $2.35 million (Egan v.
Douglas Park, et al., 93-CV-258 (Douglas County District Court,
Colo.)). Thus, it is good practice to ensure that fences along
highways are properly maintained.
Partition Fences
C.R.S. § 35-46-112-114 explains the duties of landowners to
build and maintain partition fences. The term "partition fence,"
as it is used here, indicates a fence separating the adjoining
agricultural or grazing land of two or more parties. Under C.R.S.
§ 35-46-112, when "grazing or agricultural land of two or more
persons adjoin, whether or not such lands are farmed or grazed,
it is the duty of the owner of each tract to build one half of
the line fence."
Thus, each landowner is responsible for constructing one-half of
his or her respective partition fence. However, Colorado does
not recognize the "left-hand practice," as some states do. This
practice states that when two land owners built a partition
fence, each is responsible to construct the half of the fence to
their left when standing on their respective sides of the
boundary line, facing each other.
When disputes arise between adjoining landowners over which half
of the fence they are responsible to build, Colorado courts
apportion such responsibility in a manner it deems most
equitable to all parties involved. A landowner in Colorado owns
a half interest in 100 percent of the partition fence, rather
than a full interest in 50 percent of the fence. Therefore, a
court settlement may direct the disputing parties to equally
share the cost of building the entire fence, build
disproportionate amounts of the fence, or take part in virtually
any other agreement the court determines to be an equitable
remedy.
Furthermore, the statute holds that when an "owner or tenant of
any agricultural or grazing land owns a previously erected
lawful fence upon any line between such land and the
agricultural grazing land of any other person... it is the duty
of such owner to pay the person owning such fence one-half of
its cash value" (C.R.S. § 35-46-112).
More than 100 years ago a very important case, Maudlin v.
Hanscomb, 20 p. 619 (Colo. 1888), challenged this statute. The
case was based upon a dispute over a partition fence. The
plaintiff intentionally built a partition fence ten feet inside
the correct boundary line. However, when he asked the
neighboring landowner (the defendant) for one-half of the cost
of constructing the fence he refused on the grounds that the
fence was not on the boundary line.
The case made it all the way to the Colorado Supreme Court,
where the plaintiff’s claim was rejected. The court held that
"the statute provides for line fences, and, in the absence of an
agreement that it should be so treated, the fence...cannot be
regarded as built in compliance within the provisions thereof"
(Maudlin v. Hanscomb, 20 p. 620 (Colo. 1888). Thus, a fence
cannot be regarded as lawful, nor is a party required to pay for
one-half of the construction if it is not on the proper survey
line.
Where C.R.S. § 35-46-112 places a duty on landowners to
construct and share the cost of partition fences, C.R.S. §
35-46-113 states that it is also their duty to maintain and
share the cost of maintaining partition fences. Therefore,
unless otherwise agreed, each landowner is responsible for
one-half of the cost of repairing any partition fence.
A landowner may give his or her neighbor a written notice that
their partition fence is in need of repairs. If the neighboring
party does not make repairs to one-half of the partition fence
within thirty days, the server of the notice may proceed to
repair the entire fence and collect compensation for one-half of
the cost of the repairs.
If the neighboring landowner refuses to pay compensation, a
judgment or lien may be placed on the land for the value of
one-half of the cost of repairs to the partition fence. The same
process may be carried out if an adjoining landowner should
refuse to pay for half of the cost of constructing a partition
fence.
Government Right-of-Way Fences
(C.R.S. § 35-46-105,111)
Livestock on Public Roads
Section 1 of C.R.S. § 35-46-105 deems it unlawful:...for the
owner or any person in charge of any livestock knowingly to
cause or permit such livestock to graze or run at large in any
incorporated or unincorporated municipality, lane, road or
public highway if the same is separated from the land or range
of such owner or person in charge by a fence or other
barrier..."
Therefore, if the driver of a vehicle kills or injures any
livestock permitted to run on a public road, etc., that is
enclosed by a fence designed to keep livestock out, the driver
of the vehicle will not be held liable for damages. However,
this statute does not apply to cases in which livestock are
being driven across or on such public municipalities, granted
there is a person in charge of the livestock at the time. Nor
does it apply to situations in which livestock are, unknowing to
the owner, present on a public municipality because they have
broken through a fence or cattle guard.
C.R.S. § 35-46-105, makes it illegal for cattle to run at large
on lanes, roads, highways, etc. This may cause one to think that
it is a contradiction with Colorado’s fence out doctrine.
However, there is no contradiction. The statute states that
there must be a fence in place before the presence of livestock
on a public municipality becomes illegal.
Colorado Division of Highways
According to Statute C.R.S. § 35-46-111, "it is the duty of the
division of highways to maintain right-of-way fences along and
adjacent to all federal aid highways constructed by the
division, where such highways are maintained by the division."
It is also the duty of the division of highways to maintain all
fences, state or federal, which are erected by the division of
highways along rights-of-ways or construction projects. After a
highway construction project is completed, the division of
highways is under obli-
gation to replace any right-of-way fence
that it removed during the project. Finally, a landowner in an
agriculturally zoned area may petition the division of highways
to remove a fence along a right-of-way. If such a request is
granted, the removal of the fence will be at the cost of the
division of highways.
The division of highways has the lawful duty to construct and
maintain fences along rights-of-ways that are adjacent to
agriculturally-zoned areas. However, they only have the duty to
repair such fences upon actual notice that the fence is in need
of repair. It is the duty of both motorists and landowners to
give that notice. Neither the landowner nor the division of
highways will be liable for damages caused by failure to repair
right-of-way fences unless notice is given.
Railroads
Railroad companies have essentially the same duty as the
division of highways in regard to right-of-way fences. Railroad
companies are charged with the duty of constructing and
maintaining lawful right-of-way fences along their tracks (C.R.S.
§ 40-27-102(1)). Furthermore, C.R.S. § 40-27-102(1) states that
railroads must provide gates and cattle guards at all public
road crossings. Such gates are to "...be hung and have latches
and hinges, so that they may be opened and shut at all necessary
farm crossings...for the use of the proprietors or owners of the
land adjoining such railroad..."
Colorado law gives strong incentive for railroad companies to
maintain the fences along their tracks. C.R.S. § 40-27-103
explains the liability of railroad companies: Any railroad
company running or operating its roads in this state and failing
to fence on both sides thereof against livestock running at
large at all points shall be absolutely liable to the owners of
any such livestock killed, injured or damaged by their agents,
employees, engines or cars or by the agents, employees, engines,
or cars belonging to any other railroad company or corporation
running over and upon such road.
However, once a railroad company constructs and maintains gates
at public crossings, it is the responsibility of the landowner
adjacent to the right-of-way to ensure that they are kept closed
at all times when they are in actual use. When gates are found
to be open, the landowner will be liable for any livestock that
are killed or injured as a result (C.R.S. § 40-27-102(3)).
Assignment of liability in right-of-way fence cases
When dealing with Colorado’s fence law concerning rights-of-way,
the question of who is liable for actual damages and personal
liability often arises. For example, who is liable when
livestock have broken through a right-of-way fence and caused a
motor vehicle accident? For these and many similar questions,
there actually is no definitive answer. The assignment of
liability comes not from statutes or case law, but from the
juries that decide such cases.
In cases of this nature, the jury is charged with the duty of
determining which parties or party is liable and to what degree.
They do this by comparing the actions of the parties involved to
the actions that a reasonably prudent person would take in a
similar situation. A single person may or may not have 100
percent liability.
In regard to the above example, the driver might have 50 percent
liability, the government 25 percent, and the stock owner may
bear the remaining liability; or any one of these parties may be
found fully responsible. The most important thing to remember
about liability in right-of way cases is that the law does not
place liability on any one party. Rather the jury of the case
decides to what degree the involved parties are liable.
This article should not be construed as legal advice or legal
opinion on any specific facts or circumstances. The contents are
intended for general information purposes only and you are urged
to consult with your own attorney concerning your own situation
and any specific legal questions you have.
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