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December 5, 1978.


Donaldson, Justice. McFadden and Bistline, JJ., concur. Bakes, Justice, Concurring in the reversal, but Dissenting in the Disposition. Shepard, C. J., concurs.

Author: Donaldson

In 1975, Claude Porter leased a tract of property located in Blaine County from McCulloch Properties, Inc. The McCulloch property is situated approximately one and three-quarter miles west of Hailey, Idaho. The property is intersected by the Croy Creek Road which runs in an east-west direction across the property. On June 6, 1975, Porter subleased to the plaintiff-respondent Maguire, some 82 acres located on the south side of Croy Creek Road. The 82 acres were described as hay and alfalfa land, and Maguire used the property for raising hay. The hayland was surrounded by a fence but the fence was in a state of disrepair. Sometime in June 1975, Porter subleased to the defendant-appellant Yanke the property on the north side of Croy Creek Road. This property was pasture land and was also fenced. The lease agreement between Yanke and Porter provided that Yanke would pasture cattle on the land, and Yanke would maintain the fence around the pasture to ensure confinement of his livestock. In June 1975, Yanke moved 130 cows, 130 calves, and 8 bulls into the pasture. The Yanke and Maguire properties were not located in a herd district. Testimony was received that the area had been historically one of enclosed lands.

On numerous occasions between mid-July 1975 and August 2, 1975, several of Yanke's cattle broke through the pasture fence and strayed onto Maguire's alfalfa land south of the road. On August 2, 1975, a major breakout of Yanke's cattle occurred, and approximately 137 head of cows and calves entered Maguire's hayfield. At the time, Maguire had baled hay in the field which was substantially damaged by the cattle. Substantial damage was also done to the growing second crop of hay. When Maguire learned of the breakout, Yanke was called and the cattle were promptly removed.

Maguire thereafter filed this action against Yanke for damages. Maguire sought $3,818 actual damages and $10,000 punitive damages. The district court awarded Maguire a judgment of $3,818 to compensate him for his actual damages. The district court refused to allow any punitive damages, finding that Yanke had not acted wilfully. In finding that Yanke was liable for the damages done by the cattle to Maguire's hay and land, the district court stated in its Conclusions of law:


It was the lawful duty of Yanke to maintain his fences so that his cattle would not escape through the same. This duty arose through the agreement with Porter as well as the fact that it was illegal for Yanke's cattle to trespass upon the county road.


In addition to Conclusion No. 1, it was the duty of Yanke to keep his cattle fenced in because this was not an open range area, and was an area of enclosed lands. See, I.C. 25-2118 and Soran v. Schoessler, ([87] Idaho [425]) 394 P.2d 160.


The trial court reasoned that Maguire had no duty to fence Yanke's cattle off his property, since it bordered on a county road which cattle could not legally trespass upon; and in addition that it was Yanke's duty to keep his cattle fenced in because the land was situated in what was historically an area of enclosed lands and not in open range.

Yanke contends the trial court erred in allowing Maguire recovery for damage to his crops caused by Yanke's cattle when Maguire's land is not located in a herd district or enclosed by a legal fence. Yanke argues that, with the exception of herd districts and liability to motorists for livestock that stray on highways, it is a longstanding rule in Idaho that livestock are permitted to roam and graze upon unenclosed lands without any liability accruing to the owner of the livestock for damage caused by them.

A review of the law relating to the liability of an owner of livestock for damage caused by his stock straying on another's land is necessary to the resolution of the issues presented in this case. At common law it was the duty of the owner of livestock to fence them in, and no duty was placed upon the adjoining landowner to fence them out. 4 Am.Jur.2d Animals § 49 (1962); Restatement (Second) of Torts § 504(1) (1976). The owners of livestock were liable for the damage caused by their stock straying upon another's land whether the land was enclosed or not. An early English case stated the rule as follows: "[Where] my beasts of their own wrong without my will and knowledge break another's close I shall be punished, for I am the trespasser with my beasts . . . for I am held by the law to keep my beasts without their doing wrong to anyone." W. Prosser, Handbook of Law of Torts 496 (4th ed. 1971), quoting 12 Hen. VII, Keilwey 3b, 72 Eng.Rep. 156.

Western cattle states generally rejected the common law, holding that livestock roaming at large committed no trespass when they strayed on unenclosed private land.[Footnote 1] See Scott, The Range Cattle Industry: Its Effect on Western Land Law, 28 Mont.L.Rev. 155 (1967). Idaho, Concurring with the approach of its neighboring states, also rejected the common law rule. Kelly v. Easton, 35 Idaho 340, 207 P. 129 (1922); Johnson v. Oregon Short Line Ry. Co., 7 Idaho 355, 63 P. 112 (1900). The Idaho rule was stated as follows: "The common-law rule that every man must confine his own cattle to his own land does not obtain in this state, and in Strong v. Brown, 26 Idaho 1, 140 P. 773, 52 L.R.A.,N.S., 140, Ann.Cas. 1916E, 482, it is held that under our statute (C.S., c. 82), if a landowner fails to fence out cattle lawfully at large, he may not recover for loss caused by such livestock straying upon his unenclosed land." Kelly v. Easton, 35 Idaho at 344, 207 P. at 130 [citations omitted]. However, one who willfully and deliberately drives his stock upon the lands of another, whether enclosed or unenclosed and grazes them upon such land without the permission of the owner, is liable in damages for the trespass. Lazarus v. Phelps, 152 U.S. 81, 14 S.Ct. 477, 38 L.Ed. 363 (1894); Swanson v. Groat, 12 Idaho 148, 85 P. 384 (1906).

In an effort to provide a remedy for landowners whose property was damaged by roaming cattle, most western states including Idaho passed fence laws. Idaho Code §§ 35-101 and 35-102 define what constitutes a legal fence, prescribing standards relating to height, length, number of rails and materials. Idaho Code § 25-2202 provides that a landowner who encloses his property with a legal fence has a cause of action against the owner of animals that break the enclosure.[Footnote 2] The United States

Supreme Court, commenting on a Texas fence law, in Lazarus v. Phelps, 152 U.S. at 85, 14 S.Ct. at 478, states the object of such fence statutes:

As there are, or were, in the state of Texas, as well as in the newer states of the west generally, vast areas of land, over which, so long as the government owned them, cattle had been permitted to roam at will for pasturage, it was not thought proper, as the land was gradually taken up by individual proprietors, to change the custom of the country in that particular, and oblige cattle owners to incur the heavy expense of fencing their land, or be held as trespassers by reason of their cattle accidentally straying upon the land of others.

The legal fence laws of the State of Idaho provide a remedy to the landowner whose property, although enclosed by a legal fence, is nonetheless damaged by roaming cattle. Contrary to the finding of the trial court in the instant case, the legal fence laws of the State of Idaho are "fencing out" statutes. These legal fence statutes recognized the rancher's right to allow cattle to roam.

Although the "fence out" rule prevails in this state, there are some important legislative exceptions to the rule. Idaho and other western states provide for the creation of herd districts as an alternative to landowners who wish to protect their land from damage caused by roaming stock, but do not wish or cannot afford to fence their land. Idaho Code § 25-2401 et seq. permits districts within a county to petition for the creation of a herd district. If a majority of the landowners owning more than fifty percent of the land in the district vote to create a herd district, livestock are prohibited from running at large within the district, and a landowner may recover for damages caused by animals straying upon his property, regardless of whether it is enclosed by a legal fence.[Footnote 3] In essence the creation of a herd district in Idaho reinstates the English common law within that district, placing a duty on the livestock owner to fence in his stock and holding him liable for damages caused if his stock escapes onto another's land, regardless of whether that land is fenced or not.

In 1963, the Idaho Legislature amended the herd district law, I.C. § 25-2402, to not allow inclusion of open range in a herd district.[Footnote 4] Open range was defined as follows: "all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam." The legislature also added to the section a provision that excepts from the application of herd district laws any livestock roaming or straying into the district from open range, unless the district is enclosed by a legal fence.

In 1961, the Idaho Legislature passed a statute, I.C. § 25-2118,[Footnote 5] relieving

owners of livestock roaming on open range of the duty to keep such stock off the highway and absolving them of liability for damages caused by a collision between a vehicle and the livestock. Open range was defined as "all uninclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease or permit, are grazed or permitted to roam." Idaho Code § 25-2118 impliedly makes it the duty of the person owning, or controlling the possession of livestock, to keep them off any highway not located in open range; and does not absolve such a person of liability for damages caused by a collision between a vehicle and the animal, unless the highway is in open range. Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966); Corthell v. Pearson, 88 Idaho 295, 399 P.2d 266 (1965).


The prior review of Idaho law reveals that there are two geographical areas other than cities and villages recognized in this state in relation to the liability of livestock owners for damage done by their stock to another's land. First, herd districts created pursuant to I.C. § 25-2401 et seq. where within the district the English common law rule of prohibiting livestock from running at large is reinstated. Since 1963 herd districts could not contain "open range," which was defined as "all uninclosed land outside cities and villages which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam." 1963 Idaho Sess.Laws, ch. 264, p. 674. The second area contains "open range" as defined by I.C. § 25-2402 and all other areas of the state not within cities, villages, or already created herd districts. Herd districts may be created in this area by the landowners for protection against roaming livestock so long as the land in question is other than "open range" as defined by I.C. § 25-2402. It is in this area where the rule that livestock owners are not required to fence their stock in and are not liable for damages caused by their stock to another's land unless the landowner's property is enclosed by a legal fence obtains.

The trial court held that it was the duty of Yanke to keep his cattle fenced in because the area was an area of enclosed lands and not located in open range. Testimony was received at trial that the area in question had been one of enclosed land where cattle were not permitted to roam for more years than any witness could remember to the contrary. It appears that the trial court relied on this testimony and the definitions of "open range" contained in I.C. § 25-2402 in determining the area was not in open range and thus placing a duty on Yanke to fence his livestock in. Maguire concurs with the trial court that the right of livestock to roam freely is restricted to "open range" and that the controlling definition of "open range" is contained in I.C. § 25-2402 and § 25-2118, which includes only land where historically livestock were grazed or permitted to roam.

This analysis, in essence, creates a third area relating to liability for damage caused by roaming livestock. This area would encompass all land which livestock by custom, license, lease, or permit are not permitted to roam at large or graze. In this region, a livestock owner would have a duty to fence his cattle in, and there would be no duty on a landowner to fence cattle out in order to recover damages caused by roaming livestock.

Yanke contends that the trial court erred in using the analysis above in determining he had a duty to fence his cattle in. Yanke argues that this Court's rejection of the English common law duty to keep one's livestock enclosed in Johnson v. Oregon Short Line Ry. Co., supra, and the adoption of ...

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