Cow sticking head through fence

Cow sticking its head through pole fence, July 1973.

Robert Frost wrote, “Don’t ever take a fence down until you know why it was put up.” If you’re a ranch owner, chances are it is to either keep livestock in or out.

As the urban population grows in many Western states and begins to encroach onto rural areas, it is important to get a refresher on fence laws and whether you are liable if a vehicle hits your animal. In October, Tiffany Lashmet, Texas A&M Agrilife Extension ag loss specialist, presented a webinar giving an overview of this issue along with addressing participants’ questions on a host of topics producers encounter.

While the presentation was geared towards Texas producers, Lashmet pointed out that some of the general principles may be applicable in other states, but to always check with your county Extension office, a lawyer with knowledge of fence laws, or if applicable, the local sheriff or judge.

Open range

To determine whether a livestock owner is liable for damages, it is vital to know the open range versus closed range concepts. Texas is mostly open range and has been since the 1800s. Open range, sometimes referred to as a fence-out area, means the livestock owner has no duty to fence their livestock in or prevent them from roaming onto a neighbor’s property. According to Lashmet, the livestock owner is generally not liable for injury or damages caused by loose livestock.

There are a few exceptions to this rule, which include if the neighbor has built a sufficient fence, if you intentionally drive your animals onto another property, or if you have knowledge of diseased or vicious livestock.

Texas Agriculture Code § 143.028 states a sufficient fence “Must be at least four feet high and comply with the following requirements: A barbed-wire fence must consist of three wires on posts not more than 30 feet apart, with one or more stays between every two posts; a board fence must consist of three boards not less than 5 inches wide and 1-inch thick; and a rail fence must consist of four rails.”

Open range exceptions may also occur with the passage of local, county-based ordinances, sometimes called stock laws. Some stock laws state that a landowner may not “knowingly permit” an animal to run at large, while others set a stricter standard that animals may not run at large at all.

According to the publication by the law firm Matthiesen, Wickert & Lehrer, S.C. titled Texas Stock Laws by County, “There are 22 counties which are legislatively prevented from having closed ranges for cattle. The following counties may not conduct a countywide election on the running at large of cattle: Andrews, Coke, Culberson, Hardin, Hemphill, Hudspeth, Jasper, Jefferson, Kenedy, Kinney, LaSalle, Loving, Motley, Newton, Presidio, Roberts, Schleicher, Terry, Tyler, Upton, Wharton, or Yoakum. Texas Agric. Code § 143.072. These counties are open range as they relate to cattle only. The counties may pass elections for other species of animals.” However, it is important to check your county for guidelines regarding stock laws.

Closed range

Closed range or sometimes called fenced in, requires the livestock owner to fence their livestock. All U.S. and state highways are closed range. Landowners with property adjacent to U.S. and state highways must prevent their livestock from entering these highways. The exception is farm to market roads. According to Lashmet, “What a court would look at to decide liability is: Did the landowner knowingly permit the animal to run at large?” The issue of knowingly permit includes leaving a gate open, failing to maintain the fence, having the knowledge the livestock escaped, or previously escaped.

If the livestock owner is not liable, can he collect damages from the driver of the vehicle? The Texas Agriculture Code specifically states that “A person whose vehicle strikes, kills, injures or damages an unattended animal running at large on a highway is not liable for damages to the animal except as a finding of gross negligence in the operation of the vehicle or willful intent to strike, kill, injure or damage the animal.”

Estrays

Another issue Lashmet addressed was estray animals or animals that have gotten out and are on somebody’s property. Texas Code § 142 states, “The owner of the private property or the custodian of the public property, as applicable, shall, as soon as reasonably possible, report the presence of the estray to the sheriff of the county in which the estray is discovered.”

If the owner cannot be located, the sheriff can sell the animal at a public auction after a diligent search was done. If the owner is located, the sheriff can impose “a collection fee in an amount set by the sheriff not to exceed $25.”

Generally, it is advised if you know the livestock owner to give them a call because “it is better for neighbor relations if you do that.” There is the question of what if the sheriff does not come out to collect the animal, to which Lashmet has no answer as the statute states it is the responsibility of the sheriff.

The Texas Attorney General’s opinion for estrays in open range counties is “A county sheriff has the authority and the responsibility to enforce the estrays laws whether a county has adopted a local-option stock law or remains open-range.”

Fence maintenance

This may surprise you, but Lashmet states that in Texas, there is no legal obligation for landowners to share in fence costs with a neighbor unless there is an agreement to do so, and this includes a verbal agreement. If a neighbor does not share the cost to build the fence, it is considered the builder’s property.

Lashmet stressed that if you are going to build a fence, do not remove trees or shrubs, which may be regarded as on a neighbor’s property as it is considered trespassing. You should also get a survey or pull the deed records to make sure you’re building the fence on or just within your property line.

A little known part of the fence law statute (Texas Code § 143.121-123)—which Lashmet stated she has never seen a case regarding this—is a person may not remove a fence separating a property in which the person is a joint owner absent a mutual agreement. The statute also states, “A person who is the owner of a fence that is wholly on that person’s land may require the owner of an attached fence to disconnect and withdraw the attached fence by giving six months’ notice of the required disconnection.”

Lastly, for adverse possession, there must be a designed enclosure, not just a casual fence. An example of a designed enclosure may be the person changing the type of fencing or building another fence, letting the animals graze on your property. Lashmet stated this situation is challenging to prove.

Lashmet emphasized that where a fence is located on the property does not change the property line. However, it could allow someone to make an adverse possession claim, “and if they were able to succeed on that adverse possession claim, it could change the ownership of some portion of the property.”

Although a written agreement is not required regarding leasing land and liability, Lashmet recommends there is a written agreement with an “indemnification clause” that states the landlord is not liable for acts of the tenant and vice-versa. Lashmet also suggests the landowner has liability insurance, which “provides you a defense if something happens and you get sued.” In a written agreement, a landowner can also require the tenant to maintain the fences. For more information, Lashment suggested landowners look at the Agrilife publication, Ranchers’ Agricultural Leasing Handbook, and the online Ranchers’ Leasing workshop. Both can be found at Texas Agriculture Law Blog from Texas A&M Agrilife Extension.

This information is meant to be a broad overview of Texas open and closed range laws and statutes regarding fencing and is not intended to provide any legal advice. If you want more information, you can visit agrilife.org/texasaglaw or you can email Lashmet at tdowell@tamu.edu. Texas A&M Agrilife Extension has also published a booklet titled, Five Strands: A Landowner’s Guide to Fence Law in Texas. If you wish to view the webinar, you can visit texasrangewebinars.tamu.edu. — Charles Wallace, WLJ editor

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