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Concerning real estate law, private property rights, and related matters with a focus on Colorado

Colorado’s Livestock Fence Law

A limited defense to trespass liability
Barbed
Thom Milkovic, Unsplash
January 28, 2025

Consider a situation where Rancher Ralph releases his livestock on his own property to graze, but there are no boundary fences. Rancher Ralph’s livestock wanders off, enters Farmer Bob’s farm, and feasts on Farmer Bob’s crops. This situation presents a trespass – under common law trespass principles, Rancher Ralph would be liable to Farmer Bob for any damage done to Farner Bob’s property by the livestock, including forage consumed. However, Colorado’s longstanding “fence law,” codified at Colorado Revised Statues ยง 35-46-102, may change this result. Under the fence law, Farmer Bob cannot get damages for trespass unless he maintains a fence to keep out Rancher Ralph’s livestock and the livestock break through. This is why Colorado is known as a “fence out” state – it is on Farmer Bob to “fence out” his neighbor’s livestock, and not up to Rancher Ralph to “fence in” the livestock. Thus, the fence law is best understood as a defense to liability for trespassing livestock.

The fence law seems straightforward enough, but there are limitations:

  • First, the fence law is a defense only for damages to crops and grass caused by trespassing livestock. If Rancher Ralph’s livestock damages Farmer Bob’s tractor or injures Farmer Bob, the fence law will not protect Rancher Ralph for such liability.
  • Second, the fence law won’t protect Rancher Ralph if he fails provide enough food and water for his livestock on his own property. The purpose is to encourage Rancher Ralph to take care of his own livestock.
  • Third, the fence law does not apply to “willful” trespasses. Thus, if Rancher Ralph intentionally drives his livestock onto Farmer Bob’s property or squats on Farmer Bob’s property, the fence law is no help to Rancher Ralph.
  • Fourth, the fence law applies only to “livestock,” which does not include exotic animals, pets, or game animals.
  • Fifth, as part of his “fence out” responsibility, Farmer Bob must build what the statute calls a “lawful fence.” A “lawful fence” is a sturdy three-barbed-wire fence to keep out cattle and horses, or any other fence “of like efficiency.” Caution tape won’t suffice.
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rob walsh, Unsplash