Posted by
Property Rights Foundation of America®
Founded 1994

Open Range, Fact and Fiction
Jack W. Herzberg

In 1789, the Bill of Rights was adopted by the states to amend the Constitution of the United States. The final clause contained in the Fifth Amendment became the basis for property rights in America, "...nor shall private property be taken for public use without just compensation." This, like other insertions in the Bill of Rights, was intended to protect the public from the federal government. Indeed, it was intended to protect inholders, persons who own property within the boundaries of federal trust properties, from the whims of the Forest Service, the Environmental Protection Agency, and the Bureau of Land Management. However, many of the agencies have forgotten or have never complied with the restrictions placed on them.

In 1798, A probate case came before the Supreme Court of Connecticut. In Calder et Wife v. Bull et Wife 3 US 386 the Connecticut court found for Calder in a dispute over an inheritance and a dispute over ex post facto characteristics of a Connecticut law . The case was then appealed to the United States Supreme Court and in its affirmation of the Connecticut decision the opinion of the U.S. court stated in part: "A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it." (court's emphasis) In effect, the court said in, as early as 1798, that a legislature has not the power to take a property from A and give it to B.

When the Fourteenth Amendment was ratified in 1868, it made the property rights universal by making federal rules apply to all levels of government—states, municipalities, and their agencies. It also made the right to own and keep property more secure when it stated, "...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This amendment specifically indicates that all property owners must be granted a court hearing regarding disputes over their land and that they must be treated equally by the government as to zoning, taxes, et c. The Forest Service has not always granted hearings, but instead has unilaterally gone ahead and made decisions concerning the status of inholders. For instance, cattle have been regularly allowed to graze on the private property of inholders but the Forest Service has done nothing about the downcuts of stream beds of inholders caused by water-seeking cattle.

In 1869, Logan v. Gedney, 38 Cal. 579, was reviewed by the California Supreme Court. In Logan, sheep graziers and a barley farmer disputed the right of the sheep to graze an unfenced barley field. The sheep herder was found to be not liable in this case since the barley farmer had not enclosed his property with a lawful fence. The barley farmer could not prove that the sheep were "herded" onto his fields. The court sent this case back to the trial court to grant a motion for a nonsuit. This sort of early decision was effectively reversed by several United States Supreme Court decisions, as evidenced in subsequent cases.

Two cases of nuisance/trespassing were subsequently brought to the Court of appeals. In 1945, in the California Second District Court of Appeals, in Jackson v. Hardy, 70 Cal.App.2d 6 and in 1953, and in the California Second District Court of Appeals, in Summers v. Parker, 119 Cal.App.2d 214, the courts found for the travelers in cases regarding collisions with cattle by automobiles.

In 1983, a California Appellate Department for the Superior Court found that automobile drivers surely had some rights on the highways built for them. The decision in Woolstrum v. Mailloux 141 Cal.App.3d Supp. 1, 190 Cal.Rptr. 729 included: "In the early days in California under the 'open range' laws, a rancher did not have to fence his cattle in and it was incumbent on the rare motorist to 'watch out for the cows' (as well as the deer). Urbanization and proliferating automobiles led to the requirement that the rancher fence his land and exercise ordinary care to keep his cows inside. In the present case, the wheel has come full circle and the jury has decided that this obligation of the tiny minority of [141 Cal.App.3d Supp. 9] farmers be enforced by imposing on them punitive damages if they fail to exercise whatever care is necessary to keep the pesky cattle confined."

Ultimately in 1994, concerning Shively, et al. v. Dye Creek Cattle Company 29 Cal App 4th 1620, the California Third District Court of Appeals found that, "...[i]n short, livestock owners in Dye Creeks' position are not granted a blanket immunity from the duty of ordinary care solely based on statutes related to livestock fencing."

"...Like '[e]very one' else in this state, the cattle owner 'is responsible...for an injury occasioned to another by his want of ordinary care or skill in the management of his property...'" Shively was a case concerning a driver who hit a bull on a state highway running through an open range area in Lassen County. The Shivelys, the drivers, won this case on appeal against Dye Creek, the bull owner. This was after the local trial court had rendered a summary judgment for Dye Creek.

One of the first cases to reach the United States Supreme Court which dealt with open range issues was Buford v Houtz, 133 US 320 (1890). At 326, the Court stated, "We are of opinion that there is an implied license, growing out of the custom of nearly a hundred years that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed and no act of government forbids this use." (Emphasis added.)

Then at 621, the court stated, "During the time the settler was perfecting his title...both he and all other persons who desired to do so had full liberty to graze their stock upon the grasses of the prairies and upon other nutritious substances found upon the soil." (Emphasis added.)

The law that has been ignored by the Forest Service and its tenants is the law of trespass. If the land is posted or in some other way notice has been given that it is private property, then the law of trespass is in effect. The Forest Service changes its disclosure rules from time to time and it has not allowed the disclosure of the grazier using the various allotments on national forests. Sometime it requires a great deal of sleuthing by the property owner to find out who owns the cattle that may be grazing on his property. Sometimes the property owners fail in this endeavor. Even county brand inspectors, who are many times allied with the graziers, have refused to identify the cattle.

A second open range case, Lazarus v. Phelps, 152 US 81, reached the federal Supreme Court in 1894. In this case, the grazier put his cattle on rented property next to another's property. Unfortunately, he installed an excess of cattle on the rented property. The Court stated, "If, for example, a cattle owner, knowing that the proprietor of certain lands has been in the habit of leasing his lands for pasturage, should deliberately drive his cattle upon such lands in order that they might feed [or water] there, it would scarcely be claimed that he would not be bound to pay a reasonable rental. So, if he lease a section of land, adjoining an unenclosed section of another, and stock his own section with a greater number of cattle than it could properly support, so that, in order to obtain the proper amount of grass, they would be forced to stray over upon the adjoining section, the duty to make compensation would be as plain as though the cattle had been driven there in the first instance. The ordinary rule that a man is bound to contemplate the natural and probable consequences of his own act would apply in such a case."

This case shows that a rancher is responsible for knowing the natural attractions that may draw cattle onto another's property. It made the act of situating cattle in such a position which would in effect drive the cattle to trespass unlawful. The result of the act would make the grazier liable for grazing damages.

In 1902 Cosgriff et al. v. Miller 68 P. 206, regarding a sheep grazing case, held that "...the adoption of any arbitrary rule in such a case [trespassing], which will relieve the wrongdoer from any part of the damages, and throw the loss upon the injured party would be little less than legalized robbery..."

And in 1904 Haskins v. Andrews 76 P. 588, the court stated, "...It is the duty of the landowner to protect his premises by fence or otherwise from the invasion of roving cattle." However, it also held: "But the rule does not permit the live-stock owner to escape liability for a willful and deliberate trespass on his part, and hence, if he willfully and knowingly drive his animals upon the land of another, whether the same be inclosed or uninclosed, he will be liable for damages so caused."

In 1911, the United States Supreme Court considered the case of Light v. U.S., 220 US 523. This is the famous case in which the Forest Service confirmed its right to exclude others (ranchers) from the property it held in trust for the United States government. Although the property was not fenced or not fenced completely, it won the right to exclude graziers without a proper permit from grazing their cattle on a federal reservation. At the same time the Court confirmed the rights of private property holders; the right of the Forest Service to exclude was derived from the rights that the private property owners already had.

"The government has, with respect to its own lands, the rights of an ordinary proprietor to maintain its possession and to prosecute trespassers. It may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale." Canfield v. United States, 167 US 524 (1897).

And from the same paragraph, "And if it may withhold from sale and settlement, it may also, as an owner, object to its property being used for grazing purposes, for the 'government is charged with the duty and clothed with the power to protect the public domain from trespass and unlawful appropriation.'" United States v. Beebe, 127 US 342 (1888).

Private property owner's rights are cited again with this statement that another owner's property cannot be grazed without his permission. In Cramer v. Jenkins, 82 Cal. App. 269, 255 P. 877 (1927) this idea of permission was again reviewed by the California Third District Court of Appeals. "...Whether premises are inclosed or uninclosed, if there is anything in the case showing that the owner of sheep, or of any livestock, has voluntarily done or permitted to be done any acts from which the trial court may conclude that the live stock has, with the intent and meaning of either statute [trespassing] been herded or permitted to be herded upon the lands or premises of another, without such person's consent, then and in that case, the owner of the animals so herded, or permitted to be herded, is liable.

"...If the agency of the defendant places sheep [livestock] in that position alongside of the premises belonging to another, following their natural instincts, of which the owner of the sheep [livestock], or herder thereof, must be held to have knowledge, the sheep [livestock] will proceed to graze the land and forage upon the premises of another. We think that, under such circumstances, the trial court is justified in holding that the sheep [livestock] are being herded and being permitted to graze upon lands of another, in violation of the acts of the Legislature which we have quoted [trespassing], and that unless previous consent has been obtained so to graze sheep [livestock] belonging to him, the defendant, under such circumstances, is liable for damages inflicted. The question of a lawful fence does not enter into this case."

The California Courts have found "herding" to be when the grazier knows the tendencies of his livestock and still places them in a position to be attracted to another's property. For example Light held: "Even a private owner would be entitled to protection against wilful [sic] trespasses, and statutes providing that damage done by animals cannot be recovered, unless the land had been inclosed with a fence of the size and material required, do not give permission to the owner of cattle to use his neighbor's land as a pasture. They are intended to condone trespasses by straying cattle; they have no application to cases where they are driven upon unfenced land in order that they may feed there." Lazarus v. Phelps, 152 US 81 , 38 L. ed. 363, 14 Sup. Ct. Rep. 477; Monroe v. Cannon, 24 Mont. 324, 81 Am. St. Rep. 439, 61 Pac. 863; St. Louis Cattle Co. v. Vaught, 1 Tex. Civ. App. 388, 20 S. W. 855; Union P. R. Co. v. Rollins, 5 Kan. 176.

Finally, a then new holding regarding fence laws was given in Light. "Fence laws do not authorize wanton and wilful [sic] trespass, nor do they afford immunity to those who, in disregard of property rights, turn loose their cattle under circumstances showing that they were intended to graze upon the lands of another."

Then the law regarding the establishment of fences was reiterated, "The judgment was right on the merits, wholly regardless of the question as to whether the government had inclosed its property."

"This makes it unnecessary to consider how far the United States is required to fence its property, or the other constitutional questions involved."

Since this ruling in 1911, the Forest Service has established fences that are convenient boundaries to grazing allotments and grazing units within allotments. Rarely does the Forest Service surround an area with a fence completely. Natural boundaries such as mountain ranges and large, deep streams or rivers entail the enclosure of the remaining perimeters. Similarly, the private property owner has a right to not fence his perimeters while still maintaining exclusive enjoyment just as the Forest Service has chosen to do. Also, the Forest Service charges the grazier with the obligation of maintaining the fences that border its property and they also charge the graziers with maintaining existing watering facilities for the cattle. A private property owner ought to be able to do the same thing.

Also, in the Light case is this quotation from Sutherland on Damages, "If a wrong is done willfully (that is, if a tort is committed deliberately, recklessly, or by willful negligence, with a present consciousness of invading another's right or of exposing him to injury), an undoubted case is presented for exemplary [punitive] damages." 1 Suth Dam 724...

"...The right they claim (and doubtless it was claimed in good faith) was to depasture, not their own premises, but those of another. That sort of claim, although preferred in good faith, under a mistaken notion of the law, cannot be regarded as a claim of right sufficient to absolve the trespasser from liability to exemplary damages, where the case otherwise is such as to warrant their infliction."

This seems to give the property owner the authority to claim exemplary (punitive) damages even though the grazier made the claim in good faith. Justice George Sutherland served on the United States Supreme Court and was an expert on damages.

In a case that is very similar to the situation in which I find myself, the Fourth Circuit Federal Court of Appeals ruled in, Smith v. Bevins et al. 56 F 352:

"Thereafter the legislature passed an act exempting this land, with other tracts, from the provisions of the law, the effect of which was to require complainant either to fence his whole tract against cattle, or to submit to have it trespassed upon, without redress, by any cattle whose owners chose to let them run at large. Held, that this is not within the police power of the state, and violates the federal constitution, inasmuch as it deprives complainant of his property without due process of law."

"...The court in Fort v. Goodwin, 15 S.E. Rep. 723], considering the question [trespassing on swamp land], held that the effect of the act is the taking of private property, in the same sense of the constitution. The Supreme Court of South Carolina held,

'It may be possibly inferred that it is for the benefit of those whose business is to raise stock. It manifestly increases the burdens of the freeholders within the inclosure, who make objection that their lands are to be turned into public pasture, * * * and thus required to fence any portion of their lands which they may wish to cultivate. As we think, the legislature cannot accomplish such purpose.'"

In the California Food and Agriculture Code, a definition of a legal fence was established. Section 17121 provides that "A lawful fence is any fence which is good, strong, substantial, and sufficient to prevent the ingress and egress of livestock. No wire fence is a good and substantial fence within the meaning of this article unless it has three tightly stretched barbed wires securely fastened to posts of reasonable strength, firmly set in the ground not more than one rod apart, one of which wires shall be at least four feet above the surface of the ground. Any kind of wire or other fence of height, strength and capacity equal to or greater than the wire fence herein described is a good and substantial fence within the meaning of this article. The term 'lawful fence' includes cattle guards of such width, depth, rail spacing, and construction as will effectively turn livestock."

However, the American Law Reports discusses fences as follows:

"...Fence laws have been enacted in many states declaring in effect that the owner of land cannot recover for damages caused by another's livestock which has come upon his land, unless the land was inclosed by a 'legal' or 'lawful' fence. However, the defense that the plaintiff failed to maintain a 'legal' or otherwise suitable fence is generally considered unavailable in an action for trespass by the defendant's stock, where it appears the intrusion of the stock was the result of willful or intentional trespass on the part of the defendant, and so the right of the owner of land not inclosed within a legal or suitable fence to maintain an action of trespass against the owner of livestock which went on to his land generally depends in a large part upon whether a willful or intentional trespass was committed.[*]" Annotation 158 ALR 375.

"[*]In Bolten v. Gates (1940) 100 P(2nd) 145, the court said that the Colorado fence law has no application where the trespass was wilful [sic], and this view has been recognized in other jurisdictions as regards similar fence laws."

Again, we have come to the intentional grazing of livestock on the property of another by the grazier merely putting the stock near that property with the knowledge of the grazier being that the stock will naturally drift onto the land of another. This act is trespassing. It may warrant exemplary damages.

Another case of interest is Loretto v. Teleprompter Manhattan CATV Corp. et al. 458 US 419 (1982). In this case, Justice Thurgood Marshall, one of the most liberal justices on the court, wrote the majority opinion for the United States Supreme Court. In New York City, a law had been passed allowing television cable purveyors to install equipment on apartment houses. Marshall made these points in the majority opinion: "The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights. law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury...Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion."

In Kaiser Aetna et al. v. United States 444 US 164 Justice William Rehnquist wrote for the Court in 1979: "The Government contends that...the owner has somehow lost one of the most essential sticks in the bundle of rights that are commonly characterized as property—the right to exclude this case, we hold that the 'right to exclude,' so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation...And even if the Government physically invades only an easement in property, it must nonetheless pay just compensation."

The preceding arguments fairly well defeat the theory of open range the way it is practiced by government agencies and ranchers, today. A re-education of all persons that are involved in agriculture today is sorely needed. Many state and local laws and rules need to be reformed to comply with the federal rulings that have been handed down, with a consistent message, since 1890.

Open range became such a misunderstood concept that President Ronald Reagan signed Executive Order 12630 in 1988 to help alleviate a situation which had arisen in the federal government. He saw that the "takings" clause of the Constitution had become more and more abused by various agencies and courts increasingly had to come to the rescue of private property owners. The order he signed directed the agencies to discover instances where agencies' policies might result in takings. Even regulations enforced by these agencies were now under scrutiny by courts that viewed land values as diminished or extinguished by these takings.

"The Fifth Amendment of the United States Constitution provides that private property shall not be taken for public use without just compensation. Government historically has used the formal exercise of the power of eminent domain, which provides orderly processes for paying just compensation, to acquire private property for public use. Recent Supreme Court decisions, however, in reaffirming the fundamental protection of private property rights provided by the Fifth Amendment and in assessing the nature of governmental actions that have an impact on constitutionally protected property rights, have also reaffirmed that governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required."

"The purpose of this Order is to assist Federal departments and agencies in undertaking such reviews and in proposing, planning, and implementing actions with due regard for the constitutional protections provided by the Fifth Amendment and to reduce the risk of undue or inadvertent burdens on the public fisc resulting from lawful governmental action. In furtherance of the purpose of this Order, the Attorney General shall, consistent with the principles stated herein and in consultation with the Executive departments and agencies, promulgate Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings to which each Executive department or agency shall refer in making the evaluations required by this Order or in otherwise taking any action that is the subject of this Order. The Guidelines shall be promulgated no later than May 1, 1988, and shall be disseminated to all units of each Executive department and agency no later than July 1, 1988. The Attorney General shall, as necessary, update these guidelines to reflect fundamental changes in takings law occurring as a result of Supreme Court decisions."

In the case of the Forest Service, "'Actions' refers to proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, applications of Federal regulations to specific property, or Federal governmental actions physically invading or occupying private property, or other policy statements or actions related to Federal regulation or direct physical invasion or occupancy...

"Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority...

"Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings...

"Governmental officials should be sensitive to, anticipate, and account for, the obligations imposed by the Just Compensation Clause of the Fifth Amendment in planning and carrying out governmental actions so that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc."

This Executive Order was implemented in order to save the public millions of dollars that might otherwise be paid out in court awards. Many of these cases were settled out of court in order not to set judicial precedents. However, the principle of the "takings" clause of the Fifth Amendment to the Constitution still stands.

"Federal agencies are simply not complying with their obligations under the Takings Executive Order, which is designed to protect individual constitutional liberties in property while protecting the public fisc," said Mr. Roger Marzulla, Counsel for the Defenders of Property Rights. "In a report issued today by Defenders of Property Rights, we conclude that widespread noncompliance with the Takings Executive Order has resulted in a massive violation of constitutionally guaranteed property rights, subjecting the federal government to liability for $1 billion or more."

In 2004, President George W. Bush signed another Executive Order directing agencies that were involved with implementing environmental regulations to consult with, among others, private property owners before making any decision on environmental policies.

"The purpose of this order is to ensure that the Departments of the Interior, Agriculture [Forest Service], Commerce, and Defense and the Environmental Protection Agency implement laws relating to the environment and natural resources in a manner that promotes cooperative conservation, with an emphasis on appropriate inclusion of local participation in Federal decision making, in accordance with their respective agency missions, policies, and regulations."

"As used in this order, the term 'cooperative conservation' means actions that relate to use, enhancement, and enjoyment of natural resources, protection of the environment, or both, and that involve collaborative activity among Federal, State, local, and tribal governments, private for-profit and nonprofit institutions, other nongovernmental entities and individuals."

This order was named the Facilitation of Cooperative Conservation order. It affected only federal agencies as did the Reagan order 12630. But now the agencies will not have the power to go behind the public's back when making a decision concerning other individuals and their holdings. They now must be open with their plans.

As an inholder, I am somewhat relieved to have these orders in place. For instance, the Forest Service will not give a definite answer on NEPA (National Environmental Policy Act) plans in the future. In the past, some information concerning graziers were not allowed to be disseminated by the Forest Service by its own rules. It was hard to determine who was the grazier, what cattle brands were authorized, or how to contact the lessors of Forest Service property. Now, perhaps, this information will become public.

With the Judicial Branch standing behind the inholders and the Executive Branch having awakened to its responsibilities perhaps private property owners will receive the constitutional protections which are long overdue.

Nowhere in California State law or federal law is trespassing allowed as it has been, unconstitutionally, in the Plumas County, California, Code.

Copyright, All Rights Reserved, Jack W. Herzberg, 2004

Cows on private Property without permission after their time on the Forest Service allotment ran out.

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