2021 Colorado Code
Title 40 - Utilities
Article 27 - Killing Stock - Fencing
§ 40-27-102. Fence Right-of-Way - Cattle Guards

1. Every railway company or corporation whose lines or roads, or any part thereof, are open for use, within six months after the lines of such railways or any part thereof are open, except at the crossings of public roads and highways and within the limits of incorporated towns and cities or the yard limits of established stations, shall erect and thereafter maintain fences on the sides of their roads, or the part thereof open to use, where the same pass through, along, or adjoining enclosed or cultivated fields or unenclosed lands, with openings and gates therein to be hung and have latches and hinges, so that they may be opened and shut at all necessary farm crossings of the road, for the use of the proprietors or owners of the land adjoining such railroad, and shall construct and maintain at all public road crossings good and sufficient cattle guards.
2. Such fences, gates, and cattle guards for the protection of livestock shall be constructed as defined in section 35-46-101 (1), C.R.S., and shall be amply sufficient to prevent horses, mules, asses, and cattle from getting on said railroads; and, so long as such fences and guards, or any part thereof, are not sufficient or not in sufficiently good repair to accomplish the objective for which they are intended, such railroad corporation shall be liable for any and all damages which are done by the agent, employees, engines, trains, or cars of any other corporation permitted and running over and upon their said railroad to any such cattle, horses, asses, or mules thereon. When such fences, gates, and guards have been built and duly made and are kept in good and sufficient repair, such railroad corporation shall not be liable for any such damages unless the same were occasioned by the negligence or carelessness of such railway company or corporation or the assignee or lessee thereof.
3. Where gates are constructed and maintained at farm crossings, opening into enclosed pastures or cultivated fields, it is the duty of the owner or occupant of such fields or pastures so provided with gates to see that such gates are kept closed at all times when not actually in use, and where it is shown that any such gate has been left open, the owner or occupant of such lands shall be held responsible for any stock killed or damaged because of such open gate.

History. Source: L. 11: P. 400, § 1. C.L. § 2863. CSA: C. 139, § 49. CRS 53: § 116-8-2. C.R.S. 1963: § 116-8-2. History. Source: L. 11: P. 400, § 1. C.L. § 2863. CSA: C. 139, § 49. CRS 53: § 116-8-2. C.R.S. 1963: § 116-8-2.

Analysis

• I. GENERAL CONSIDERATION.
• II. EVIDENCE.

Annotator's note. Cases material to § 40-27-102 decided prior to its earliest source, L. 11, p. 400 , § 1, have been included in the annotations to § 40-27-102 .

This section is penal, in derogation of the common law, and should be strictly construed. Colo. & S. Ry. v. Neville, 41 Colo. 393 , 92 P. 956 (1907); Denver & R. G. R. R. v. Kelso, 40 Colo. 84 , 90 P. 65 (1907).

Situation in which railway not liable. Where an animal is near to the tracks of a railway, and, frightened by an approaching train, attempts to cross the track, but not until the train is so near that the engineer is unable to come to a stop with safety, the railway company is not liable for the death of the animal which ensues. Denver & R. G. R. R. v. Bird, 60 Colo. 259 , 152 P. 911 (1915).

A railroad is not liable for an injury to an animal within the yard limits of an established station. It is not required by this section in order to exonerate the railway company, that the yard limits should be marked by sign or otherwise. Denver & R. G. R. R. v. Bird, 60 Colo. 259 , 152 P. 911 (1915).

The yard limits of a railway station must be regarded as at least coextensive with the sidetracks and switches existing and customarily used for the transaction of business at such station. Denver & R. G. R. R. v. Siminoe, 65 Colo. 73 , 173 P. 541 (1918).

A railroad company is not required to fence public roads or highways. Colo. & S. Ry. v. Neville, 41 Colo. 393 , 92 P. 956 (1907); Denver & R. G. R. R. v. Dunn, 46 Colo. 150 , 103 P. 387 (1909).

The owner of stock killed is bound by the procedure established only when the railroad company complies with its provisions, and if the company fails in this respect, the owner may bring an action under this section and §§ 40-27-103 , 40-27-104 , and 40-27-105 to recover the actual value of the animals killed. Chicago, R. I. & Pac. Ry. v. Eyster, 69 Colo. 168 , 169 P. 1181 (1918).

Merely because an animal may be near the track of a railroad does not require an engineer to check the speed of his train unless there is something to indicate that the animal may go upon the track. Rio Grande W. Ry. v. Boyd, 44 Colo. 119 , 96 P. 781 (1908); Chicago, B. & Q. R. R. v. Church, 49 Colo. 582 , 114 P. 299 (1911); Davis v. Holly Sugar Corp., 74 Colo. 331 , 221 P. 1091 (1923).

A railway company is not to be assessed the full value of an animal not seriously injured by one of its trains, though the animal is afterwards shot, no evidence being given as to the person by whom it was shot nor of any necessity to put it to death. Denver & R. G. R. R. v. Brennaman, 45 Colo. 264 , 100 P. 414 (1909).

Railroad which receives a right-of-way by congressional grant cannot legally abandon a portion of that right-of-way. Allard Cattle Co. v. Colo. & S. Ry., 187 Colo. 1 , 530 P.2d 503 (1974).

Absent an act of congress providing for the disposition of specific portions of rights-of-way granted by congress, a third party may not acquire title to portions of such rights-of-way by adverse possession or abandonment of land. Allard Cattle Co. v. Colo. & S. Ry., 33 Colo. App. 39, 516 P.2d 123 (1973), aff'd, 187 Colo. 1 , 530 P.2d 503 (1974).

Where congress by the general railroad right-of-way act provided for grants to railroads of rights-of-way 100 feet in width on each side of a railroad bed across public lands, and where a railroad constructed fences, in compliance with this section, 50 feet in width on each side of the railroad bed, the outer 50 feet on each side of the tracks which lay outside of the fences could not be diminished by either adverse possession or abandonment. Allard Cattle Co. v. Colo. & S. Ry., 33 Colo. App. 39, 516 P.2d 123 (1973), aff'd, 187 Colo. 1 , 530 P.2d 503 (1974).

Applied in Atchison, T. & S. F. Ry. v. North Colo. Springs Land & Imp. Co., 659 P.2d 702 (Colo. App. 1982).

Plaintiff must show that railroad was subject to provisions of this section. When plaintiff seeks to recover the penalty from the defendant railroad, it is necessary to bring it within the purview of this section and to show that it was such a railroad as was subject to its provisions. Denver & R. G. R. R. v. Kelso, 40 Colo. 84 , 90 P. 65 (1907).

Plaintiff cannot recover in the absence of proof that any of defendant's lines or any part thereof, were “open for use” within six months from the passage of the act or within six months from the time it took effect, or that defendant's lines of railroad were not open for use at the date of the passage of the act. Colo. & S. Ry. v. Neville, 41 Colo. 393 , 92 P. 956 (1907); Denver & S. Ry. v. Kelso, 40 Colo. 84 , 90 P. 65 (1907).

Where no violation of section involved plaintiff must show injury was result of defendant's negligence. Where, in an action for negligence, no violation of this section is involved, plaintiff must show that the injury complained of was the result of defendant's negligence; and such negligence must be clearly established either by direct or circumstantial evidence. Denver & R.G.R.R. v. Dunn, 46 Colo. 150 , 103 P. 387 (1909); Chicago, B. & Q. R. R. v. Church, 49 Colo. 582 , 114 P. 299 (1911); Davis v. Holly Sugar Corp., 74 Colo. 331 , 221 P. 1091 (1923).

Demurrer to complaint alleging railroad had done none of the things required by this section not sustained. In an action to recover the value of livestock killed by the trains of a railway company, where the complaint alleged that the company had done none of the things required by this section, a judgment sustaining the demurrer thereto was reversed. Adams v. Chicago, B. & Q. R. R., 67 Colo. 2 , 185 P. 271 (1919).

Where the plaintiff produces evidence sufficient to sustain a verdict in his favor, a nonsuit is error. Adams v. Chicago, B. & Q. R. R., 67 Colo. 2 , 185 P. 271 (1919).

“Open to use” requirement not fulfilled. The fact that a railroad might have been built some years earlier does not fulfill the requirement that it be shown that this particular railroad company, which is the defendant, either had a road “open to use” at the time the act became a law or that it succeeded to some company having such road so open to use. Denver & S. Ry. v. Kelso, 40 Colo. 84 , 90 P. 65 (1907).

The essential facts should be pleaded and proven, and, in the absence of pleadings in the justice courts, the testimony must show such facts affirmatively and be sufficiently comprehensive to show defendant's liability under the statute. Denver & R. G. R. R. v. Kelso, 40 Colo. 84 , 90 P. 65 (1907).

Failure of a railroad company to maintain a fence is negligence per se, and if such negligence is the cause of the accidental killing of stock, the owner may recover. Chicago, R. I. & Pac. Ry. v. Eyster, 69 Colo. 168 , 169 P. 1181 (1918).

Presumed that animals come upon the track at the point where they are killed. In an action for the value of livestock killed upon the unenclosed tracks of a railway, at a point where enclosure is required, it will be presumed, nothing appearing to the contrary, that the animals came upon the track at the point where they were killed. Denver & R. G. R. R. v. Wright, 64 Colo. 310 , 171 P. 499 (1918).

Absolute liability until evidence rebutted. The evidence disclosed that the road was unfenced and there was no enclosure where the animals were killed. This established proof of absolute liability, until the company showed that the road was enclosed as required by law or that the killing was at a point where no enclosure was required. Denver & R. G. R. R. v. Wright, 64 Colo. 310 , 171 P. 499 (1918).

Person not skilled in handling trains may be a competent witness as to the velocity. Colo. & S. Ry. v. Webb, 36 Colo. 224 , 85 P. 683 (1906).

Not prejudicial error to allow person not expert to testify as to quality of the horse. See Colo. & S. Ry. v. Webb, 36 Colo. 224 , 85 P. 683 (1906).

Farmer's neighbors competent witnesses. In an action against a railroad company for negligently killing an animal, plaintiff's neighbors, who were farmers and owners of similar animals and used them and sometimes bought and sold them, were competent witnesses as to the value of the animal, although they testified that they did not know the “market value” of the animal in that vicinity, and did not know that there was any “market value” for such animals. Burlington & M. R. R. R. v. Campbell, 14 Colo. App. 141, 59 P. 424 (1899).

Mere finding of dead or injured animal near a railroad track is not proof that it was killed or injured by the railroad. Burlington & M. R. R. R. v. Campbell, 14 Colo. App. 141, 59 P. 424 (1899).

Such killing or injury may be shown by circumstantial evidence and it is not necessary to prove such facts by eyewitnesses. Burlington & M. R. R. R. v. Campbell, 14 Colo. App. 141, 59 P. 424 (1899).

Evidence showing negligence on part of engineer. Colo. & S. Ry. v. Charles, 36 Colo. 221 , 84 P. 67 (1906).