Legal Issues: About Fences
Fence Law in Colorado

Just saying that Colorado is a "fence out" state doesn't cover the entire issue. Some states are "fence in," some are "fence out." But it doesn't make a lot of difference because fence law is very complex. It encompasses fencing, trespass and open range statutes. It has survived various legislative limitations and considerable court interpretation. The basic tenet in the Colorado statute is that "any person maintaining in good repair a lawful fence 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." It further states that "no person shall recover damages for such a trespass or injury unless... such grass, garden or vegetable products or crops were protected by such a lawful fence." Livestock are defined to include "horses, cattle, mules, asses, goats, sheep, swine, buffalo, and cattalo." A property may not be protected on all sides by a lawful fence but if livestock should break through what lawful fence there is and cause damage, financial recovery for the trespass may be had. The law defines a lawful fence as "a well-constructed, three-barbed wire fence with substantial posts set at a distance of approximately 20 feet apart, and sufficient to turn ordinary horses and cattle with all gates equally as good as the fence or any other fence of like efficiency."

"Partition fences between agricultural and grazing land shall be erected and kept in repair at the joint costs of the owners of the respective adjoining tracts" unless the owners make other agreements, in writing. Barring other agreements, the law allows the owner (or tenant) of one tract to serve written notice to the owner (or tenant) of the adjacent tract requiring the erection or repair of one-half of the partition fence. If, after 30 days, the person being served doesn't comply, the person giving notice may then erect or repair the entire fence and collect one-half the cost through court action.

A rancher who releases his livestock on land where he has the right to graze them is under no obligation to prevent them from trespassing on the unenclosed property of another landowner. In addition, as long as the cattle trespassed on that other property simply by following their natural grazing instincts, that cattle owner is not responsible for any damage they cause. If, however, the cattle rancher willfully imposes his cattle on someone else's land, he is liable for the trespass and any damages. There is a very fine line between the trespass being willful and the rancher expecting his cattle to naturally go there without any encouragement on his part. If there was a lawful fence in between, this would be a whole other story. Without a lawful fence in between, the cattle owner can actually claim exemplary damages from the trespassed landowner if the trespassed landowner harasses the cattle in driving them off his land.

From the above, you can see that this is a complicated subject and discussion of it can get very heated quickly. Rumor has it that there is a special wing at the Colorado Penitentiary for folks who get overly excited in fence disputes. Needless to say, I am not qualified to present the entire subject in this space. Nor does this article purport to cite all applicable stautes or refer to all applicable court decisions regarding fences and livestock trespass. Hopefully, there is enough info here to convince you to consult with a competent lawyer before you get in over your head with a fence/trespass problem.