Recently, the Archuleta County District Court took a close look at an historic set of laws about fences and grazing. If you own rural land or spend any time outside municipal borders, you probably have an idea and an opinion about Colorado’s fence laws. However, you might be surprised those laws are not as clear as you think.
The Archuleta County case arose within a large, rural subdivision outside Pagosa Springs. An open area – once slated to be a golf course and now held for parks and recreation uses – winds around among 3-acre parcels. Many of the private parcels are not fenced – the visual effect is of a large, open area with houses dotted here and there. In reality, there are property boundaries galore, including the boundaries of the common area that is owned by the tax-funded metropolitan district for the subdivision.
One landowner in the area has been in the habit of grazing his flock of sheep, which ranges in size from 30 to close to 90, depending on the time of year, in the open lands within the subdivision. Other landowners have had mixed reactions – some like to see the sheep grazing and others resent the sheep overtaking the common area and entering onto private property and causing damage or nuisance. The sheep owner has argued that he is free to graze his sheep on the open, common land because it is not protectively fenced, and if the sheep then wander onto neighboring private land that is not fenced, he is protected from liability for that, too. However, the metropolitan district has expressly forbidden grazing on the open areas without written permission.
Colorado fence law is commonly known to say the landowner is responsible to fence livestock out of his or her property, and the livestock owner is free to turn his or her animals loose without concern for their wandering onto unfenced private property. In fact, the heart of the fence law, a piece of statute that has been around since before Colorado became a state, specifically says a landowner cannot get trespass damages against a livestock owner for animal invasions unless the landowner has a fence in place. So that would seem to be that ... but it’s not.
There is a second section to the fence statute. The second part says that a landowner can get trespass damages if the livestock owner grazes animals where he knows he has no permission to do so, even in the absence of a fence. A series of court cases, starting in the 19th century, have explored the nuances of when it’s lawful for animals to move onto particular pieces of land, resulting in a somewhat confusing patchwork of judicial rules. This second part of the fence statute and the string of related court opinions create complexity that many people are not aware of.
In the Pagosa Springs case, the court examined the statute and its venerable case law. The court noted that the two parts of the statute were seemingly contradictory – one says that the landowner must build a fence or suffer the consequences, and the other says that she can protect her land only by denying permission to enter the property. The court found the two parts of the statute and historic cases could be harmonized to mean a landowner can sue a livestock owner for trespass if she has a lawful fence in place or if the trespass onto her land was intentional. The court held that because the metropolitan district had overtly prohibited grazing on its property and the sheep owner knew that, the grazing was an intentional trespass, even though there was no fence in place. The case did not specifically address the rights of landowners with property abutting the open area, but there was nothing to say the same rule applicable to the district’s property would not be applicable to others’ properties.
This outcome may be surprising to those familiar with the “fence out” rule of long-standing. The more complex parts of the fence law appear to have largely escaped popular and even judicial notice over centuries of livestock grazing in Colorado. The Archuleta County District Court’s decision went right to those complexities and reasoned through them.
The case is now on appeal, so the Colorado Court of Appeals will also get a chance to opine on the meaning of the two-pronged statute if it sees fit. If you spend any time thinking about fences and livestock, stay tuned.
Kate Burke is senior corporate counsel with Momentum Energy Group and the owner of Colorado Animal Law, LLC. Reached her at kburke@coloanimallaw.com.
