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Published May 14, 2012, 09:26 AM

Herd laws on the open range

BISMARCK, N.D. — In the days of the Wild West, disputes over trespassing livestock likely were resolved more often by a neighborly agreement, or perhaps by finding out who was the quicker draw. Since that time, a substantial body of law has developed regarding the liability of livestock owners when their cattle or other livestock cause damage to property of another.

By: Derrick Braaten, Agweek

BISMARCK, N.D. — In the days of the Wild West, disputes over trespassing livestock likely were resolved more often by a neighborly agreement, or perhaps by finding out who was the quicker draw. Since that time, a substantial body of law has developed regarding the liability of livestock owners when their cattle or other livestock cause damage to property of another.

The “common law” (law created by the courts) established a rule that a person who keeps animals likely to roam has the duty of fencing them in, and that that person’s neighbors are not required to fence out roaming livestock. The owner of livestock not only had a duty to fence the livestock in, but the owner also was strictly liable for any damage caused by the livestock.

In legalese, “strict liability” differs from the usual standard of “negligence.” Under a negligence standard, a person is not responsible to another for damages unless that person acted without reasonable care. Under strict liability, the livestock owner is responsible for damages caused by roaming livestock, regardless of the level of care used to prevent such damage.

The rule that the owner of livestock is responsible for fencing in livestock came to us from England, and the rule makes sense in more densely populated areas. However, in the early days of this country, some states out on the open range started to develop different rules, because the local custom was to allow livestock to roam freely. Montana, for example, in its early territorial days, adopted what is known as the “open range doctrine.” This doctrine basically turns the common law rule on its head, although there are legal nuances I will not be covering here. Generally speaking, under the open range doctrine, it is the landowner neighbor who must fence out the cattle roaming at-large.

The reasoning behind this change in the laws was obvious: It was far less expensive for someone to fence in their homestead than it would be for a rancher to fence in the enormous stretches of land that the livestock grazed upon. Additionally, large tracts of land were owned by the state and federal governments and used in common by ranchers for grazing.

The present day standards vary based on the state, and even within each state. North Dakota, for example, allows for designated “grazing areas,” and the owner of livestock in these grazing areas has limited or no liability for any damage caused by livestock in those areas. In other areas, North Dakota has retained the common law rule of strict liability, with exceptions such as cattle straying onto highways outside of grazing areas (where the negligence standard applies).

The open range doctrine also has some exceptions. For example, the purpose of the doctrine is to protect livestock owners whose animals enter onto and damage another’s property unbeknownst to the owner. The courts will not, however, look kindly on a rancher who intentionally drives his or her cattle across a neighbor’s property.

In the end, there are as many exceptions as there are rules with respect to the liability of livestock owners. The rules, and their exceptions, depend not only on what state you live in, but also on where you reside in that state, whether you are in a designated grazing area (in North Dakota) or a herd district (in Montana). It is good to be aware of the rules where you ranch, and as always, it is best to consult an attorney regarding the specific laws that apply to you and your livestock.

Editor’s Note: Derrick Braaten is a partner in Baumstark Braaten Law Partners of Bismarck, N.D. He welcomes input and comments on his columns. He can be reached at his office at 701-221-2911 or by email

at derrick@baumstarkbraaten.com.

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