2021 Colorado Code
Title 35 - Agriculture
Article 46 - Fence Law
§ 35-46-102. Owner May Recover for Trespass

1. Any person maintaining in good repair a lawful fence, as described in section 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 break through such fence. No person shall recover damages for such a trespass or injury unless at the time thereof such grass, garden or vegetable products, or crops were protected by such a lawful fence. Even though such land, grass, garden or vegetable products, or other crops 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.
2. Whenever any person stocks land, not enclosed by a lawful fence, on which such person has a lawful right to pasture or forage livestock, with a greater number of livestock than such land can properly support or water and any of such livestock pasture, forage, or water on the lands of another person, in order to obtain the proper amount of pasture, forage, or water or whenever any person stocks with livestock land on which such person has no lawful right to pasture or forage livestock and such livestock pasture, forage, or water on such land or on other land on which such person has no right to pasture or forage livestock, he shall be deemed a trespasser and shall be liable in damages and subject to injunction.
3. All damages sustained on account of the foregoing trespasses may be recovered, together with costs of court and arbitration, and the livestock so trespassing may be taken up by the person damaged and held as security for the payment of such damages and costs. A court of competent jurisdiction in any proper case may issue an injunction to prevent further trespasses. In any action for trespass 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 in addition to awarding actual damages include reasonable exemplary damages. Recovery may be had under this section either in a court of law or by arbitration as provided in section 35-46-103.

History. Source: L. 1885: P. 221, § 3. R.S. 08: § 2589. L. 17: P. 343, § 3. C.L. § 3155. CSA: C. 160, § 58. L. 53: P. 587, § 3. CRS 53: § 8-13-2 . C.R.S. 1963: § 8-13-2 .

Law reviews. For article, “Group Action for Range Control in the Northern Great Plains”, see 13 Rocky Mt. L. Rev. 199 (1941). For article, “One Year Review of Torts”, see 38 Dicta 93 (1961). For article, “Liability for Damages Caused by Escaped Livestock”, see 24 Colo. Law. 1581 (1995).

Colorado's fencing laws are inapplicable to federal lands because Colorado law conflicts with the federal Taylor Grazing Act. Under the supremacy clause of the U.S. Constitution, federal law overrides conflicting state law with respect to federal public lands. Management of the federal public lands should not be at the mercy of state legislatures. Federal law as expressed in the Taylor Grazing Act prohibits grazing trespass on federal land with a permit. There is no obligation under the Act for the federal bureau of land management to fence out potential trespassers. United States v. Shenise, 43 F. Supp. 2d 1190 (D. Colo. 1999 ).

Maintenance of lawful fence essential to recovery. Under this section, the owner of livestock turning the same at large upon the public highway is not liable for their invasion of the private lands of another who fails to maintain a lawful fence, nor for their trespasses therein, even though he expects that such trespasses shall be committed. Richards v. Sanderson, 39 Colo. 270 , 89 P. 769 (1907); Williamson v. Fleming, 65 Colo. 528 , 178 P. 11 (1918); Schaefer v. Mills, 72 Colo. 82 , 209 P. 643 (1922); Bolten v. Gates, 105 Colo. 571 , 100 P.2d 145 (1940).

If no fence exists, animal owner not responsible for nonwillful trespass. One who turns his cattle out to graze, unrestrained upon lands where he has a right to so release them, is under no obligation to prevent them entering upon the unenclosed premises of another, and if they do so enter through following their natural instincts, he is not responsible for the damage occasioned thereby, but the absence of a lawful fence does not justify a willful trespass. Bolten v. Gates, 105 Colo. 571 , 100 P.2d 145 (1940).

Fence law protects special district from willful trespass onto its property. The fence law modifies the common law of the state by adding a condition precedent to the recovery of damages in certain actions asserting non-willful trespass. This condition precedent, the lawful fence requirement, may be raised as a defense by livestock owners, but it does not apply in actions for willful trespass or in trespass actions brought under subsections (2) and (3). Aspen Springs Metro. Dist. v. Keno, 2015 COA 97 , 369 P.3d 716.

As for necessity of proof of sufficient fence, see Morris v. Fraker, 5 Colo. 425 (1880).

Where cattle stray into plaintiff's field night after night. The mere fact that cattle strayed into plaintiff's field night after night did not bring the case within the rule of Bell v. Gonzales (35 Colo. 138 , 83 P. 639 (1905)), where it was held that this section does not apply in cases where cattle owners deliberately take possession of the lands trespassed upon. Schecter v. Morgan, 66 Colo. 35 , 178 P. 564 (1919).

Policy of law is to favor stockowners and permit them to range their stock at large; the duty of protecting crops is placed upon the farmer. Schaefer v. Mills, 72 Colo. 82 , 209 P. 643 (1922).

Willful trespasser knowingly herding or driving his stock upon another's premises, cannot invoke this section in defense of an action for such trespass. Willard v. Mathesus, 7 Colo. 76 , 1 P. 690 (1883); Nuckolls v. Gaut, 12 Colo. 361 , 21 P. 41 (1888); Fugate v. Smith, 4 Colo. App. 201, 35 P. 283 (1894); Norton v. Young, 6 Colo. App. 187, 40 P. 156 (1895); Sweetman v. Cooper, 20 Colo. App. 5, 76 P. 925 (1904); Bell v. Gonzales, 35 Colo. 138 , 83 P. 639 (1905).

Article modifies common-law doctrine which held the owner of trespassing livestock strictly liable for their trespasses on the lands of others. SaBell's, Inc. v. Flens, 627 P.2d 750 (Colo. 1981).

In adopting this article, the general assembly modified the common law only to the extent embraced in the article, which may not be enlarged by construction, nor extended beyond its specific terms. Robinson v. Kerr, 144 Colo. 48 , 355 P.2d 117 (1960).

Article has no application to action for personal injuries. The common law being the rule of decision in this state, it would seem to follow that the so-called “fence law” has no application to an action for personal injuries inflicted by trespassing animals. Robinson v. Kerr, 144 Colo. 48 , 355 P.2d 117 (1960); Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286 (Colo. App. 2005).

Article does not bar claim for damages arising from fertilizer spill caused by errant cattle. Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286 (Colo. App. 2005).

Article does not bar action for injuries sustained in automobile accident resulting from negligence in tending cattle and maintaining fences. Millard v. Smith, 30 Colo. App. 466, 495 P.2d 234 (1972).

Bailee of livestock may be within scope of section. A bailee may possess sufficient attributes of ownership in a horse to bring that ownership within the scope, intent, and purpose of this section. SaBell's, Inc. v. Flens, 42 Colo. App. 421, 599 P.2d 950 (1979), aff'd, 627 P.2d 750 (Colo. 1981).

Correct measure of damages where crop is not completely destroyed, and in view of the plaintiff's duty to mitigate damages, is the difference between the yield from the damaged crops and the yield from undamaged crops raised on similar land in the same season and locality. Bloxsom v. San Luis Valley Crop Care, Inc., 198 Colo. 113 , 596 P.2d 1189 (1979); Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286 (Colo. App. 2005).