Most of Wyoming's law was originally taken from England's common law, as currently noted in Title 8 of Wyoming State Statute. Many of Wyoming's surrounding neighbor states also adopted common law.
English common law made the livestock owner strictly responsible for trespass by his livestock: "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," 12 Hen. VII, Keilway 36.
However, this particular common law rule has never been accepted in Wyoming and numerous other western states for a variety of reasons. One reason being that the land was open and vast, suitable for growing herds of livestock upon the open plains in the absence of fences. Also, the brand laws created by the territorial legislature conflicted with common law. Other reasons will be discussed further in cited case law.
The first session of the Legislative Assembly, for the Territory of Wyoming, convened October 12, 1869 in Cheyenne. This followed the Organic Act of Wyoming which was approved July 25, 1868. The first Governor and Secretary were appointed and qualified April 15, 1869 and on the 19th of May the Judicial officers reported for duty, and the territorial organization was complete.
The 1869 Wyoming General Laws preface cites the following on page v, ". . . cattle and all kinds of stock can be fattened without being housed or foddered in winter time. With these extraordinary facilities, Wyoming can successfully compete with all the world in the matter of stock growing, and upon her plains there is room and sustenance for millions of cattle and unnumbered herds of wool-bearing animals." This statement is relevant to the open range discussion because at the time Wyoming had 72, 464,000 acres of mostly unfenced land that was going to be used in part to rear livestock and Wyoming was considered an open range state. Today, the Wyoming livestock industry is the state's second largest industry.
The General Laws set forth by the first legislative assembly for the Territory of Wyoming contained Chapter 58, which was labeled as an act to establish a fence law in Albany, Carbon and Uinta Counties. This law tackled such issues as the definition of a lawful fence and explained the materials necessary to construct a lawful fence. Barb wire had not been introduced to the territory yet, or in limited circumstances, and fences were time consuming to construct out of wood and rock.
Chapter 58 also allowed for arbitration indicating that owners of breach animals could be held liable in a civil action, should a lawful enclosure be breached. Nowhere did the act tackle whether animals should be fenced in or out, however, common sense would dictate that in order to be able to hold someone civilly liable, one would have to construct a lawful fence, thus the birth of the "fence out" theory. With influence from large livestock producers and stock grower organizations, Wyoming legislatures declined to uphold the common law rule that livestock must be fenced in by their caretakers, allowing lives stock to roam the open ranges of Wyoming.
In addition to the lawful fence act in Chapter 58, the territorial legislature created Chapter 62 which required every person having cattle, hogs, sheep or other livestock to have a mark or brand on them. This was done in an effort to identify livestock as they roamed the open range of Wyoming. Today, livestock do not have to be branded unless they are running on an open range. Chapter 85 was also created which dealt with estray livestock.
History tells us that sheep and cattle were the two primary species of livestock being reared in the young state of Wyoming in the late 1800's and early 1900's.
To the south of Wyoming, during the 1880's the Supreme Court of Colorado was tackling an issue that Wyoming would soon be concerned with regarding the trespass of cattle and sheep. Like Wyoming, Colorado had also adopted common law from England and did not uphold the common law rule requiring the owner of livestock to keep their animals fenced in either. The general law of Colorado allowed cattle to roam the range at will. Again, like Wyoming, the only time the victim of a livestock trespass could pursue the matter civilly and recover damages, was when the area was enclosed by a lawful fence
In 1883, the Colorado Supreme Court made a significant ruling that would soon be important to Wyoming in a case entitled Willard v. Mathesus, 7 Colo., 76 (1883). "The rule as to sheep is different. It is the custom to close-herd sheep upon the range. This custom has the force of law. In the view of these customs, farmers make their fences good against cattle, but not necessarily against sheep. It is the duty of the herder in charge of a flock of sheep to use ordinary care to prevent their trespassing upon crops, and in the absence of such care, the owner of the sheep will be held responsible for damage to crops by them." This Colorado case will become important in the later part of a Wyoming case entitled Hecht v. Harrison.
Wyoming Justices tackled the issues of public lands in Hecht v. Harrison, 5 Wyo., 279 (1895), a case which commenced in 1891 and was decided in 1895 stating that "stock growers had a right to de-pasture and graze cattle and livestock, under the implied license extended by the government . . . upon these unappropriated public lands in the grazing regions of this country."
Going further in this case, the Justices affirmed that the common law rule of fencing livestock in "had not been held in a multitude of cases in this sparsely settled section of this country where legislation defining lawful fences has been enacted and where the custom has prevailed from the early settlement of the west to permit cattle to graze on unenclosed lands as a common."
At this point, however, the Justices separated cattle and sheep with regards to this issue in Wyoming citing the earlier Colorado case, Willard v. Mathesu, in Hecht v. Harrison. "A distinction is made between cattle and sheep, as the latter animals, from their nature, require to be under the care of a herder, and so the owner of sheep has been held responsible for their trespasses upon lands enclosed with a fence that would exclude cattle but not sheep." Wyoming was now a fence in state with regards to sheep.
In Hecht v. Harrison, the court went further to define the following. "The general rule permitting cattle to run at large without holding the owner responsible for their trespasses upon the unenclosed lands of another, is subject, however, to one important exception, that where such livestock are driven upon the unenclosed lands of another, without his permission, the owner of the animals is responsible for whatever damage they may cause while there."
In 1882 and again in 1888, the Wyoming legislature redefined a legal fence to include barb wire, making a lawful fence easier and quicker to construct. All owners of unlawful wire fences had to reconstruct them in a lawful manner by the first day of August 1888.
With more fences now dividing the open plains, the question arose whether it constituted a trespass to go thru a lawful enclosure of another to get to pasture on the other side of the enclosure. In State v. Johnson, 7 Wyo., 512 (1898), the Wyoming Supreme Court held that no trespass is committed with regards to sheep being driven through a lawful enclosure as long as the animals are not allowed to stop and de-pasture the enclosure.
Refining the issue even more, in Cosgriff Brothers v. Miller, 10 Wyo., 190 (1901), the Justices held once again that . . . "The rule that no trespass is committed when animals lawfully running at large wander upon and de-pasture the unenclosed land of a private owner does not permit the owner of cattle or sheep to willfully and knowingly drive them upon the premises of another, although unenclosed." In other words, if the livestock wander there in the normal course of livestock business it is acceptable, however, they are not to be intentionally driven onto the lands of another. In this case, F. Chatterton and Van Ordsel & Burdick, attorneys for plaintiffs, argue that the fence and brand laws are inconsistent with the common law rule of fencing livestock in, and, therefore, repeal it. They also argue that it is unlawful to fence or use private lands so as to prevent others from having access to the government lands interspersed therewith, and, therefore, the public has a right of way. The Justices agreed with both arguments in their opinion. This case and opinion would go on to be cited numerous times throughout the upcoming century.
Martin et al. v. Platte Valley Sheep Company, 12 Wyo., 432 (1904), cited the concept of an implied license from the government allowing stock growers to de-pasture and graze their livestock upon the public lands in the absence of express restriction or prohibitions. In this case, the Justices once again indicated the old common law rule from England was not valid in this state, and that no trespass is recognized for cattle permitted to run at large which run onto the unenclosed lands of another. In addition, they also clearly stated in their opinion that it was in fact unlawful for a private person to enclose the lands of government and use it for his own without proper title. Interestingly, cattle going to water on the unenclosed lands of another did not constitute trespass. The opinion once again stated that in "this State cattle are permitted to run a large; and the principle in force here is that no actionable trespasses committed when domestic animals lawfully at large wander upon and de-pasture the unenclosed lands of a private owner. But it is well settled that this principle will not permit the owner of such animals to willfully and knowingly drive them upon the premises of another, although unenclosed. Under the operation of the principle afore said, it is incumbent upon a land owner, in order to prevent domestic animals lawfully at large from wandering and trespassing thereon, to properly enclose his land; but if he allows it to remain unenclosed, and the cattle of others, lawfully at large, wander upon and de-pasture it, the owner of such cattle will not be guilty of an actionable trespass. The general law imposes on the landowner no obligation to fence, but, when land is left unenclosed, the owner takes the risks of trespass thereon by the animals of others running at large, and can maintain no action for trespass. A "lawful" fence is, necessarily, a condition precedent to the right of recover." The court also alluded to the fact that the pasturing of sheep on the lands of another, whether enclosed or unenclosed, is made unlawful.
In another 1904 case entitled Haskins v. Andrews, 12 Wyo., 458 (1904), the Wyoming Supreme Court held that . . . "The owner of cattle is not required, in this State, to confine them, or to prevent them from straying upon the unenclosed premises of another, or, in default thereof, to respond in damages for their trespass upon unenclosed lands." Going further . . . "No trespass is committed where animals lawfully at large wander upon and de-pasture the unenclosed lands of a private owner. However, if one willfully and knowingly drives his cattle upon the land of another, enclosed or unenclosed, he will be guilty of trespass, and liable for the damages caused thereby." Finally the Justices contended that overgrazing, by turning loose more cattle than a pasture could support, did not in itself constitute a trespass when the animals wandered onto the unenclosed land of another in search of food or water.
Where once the argument over trespassing livestock between landowners occupied the court's time, by 1905 the question was becoming one of trespass on public lands and access to the public lands which is discussed in Anthony Wilkinson Livestock v. McIlquam, 14 Wyo., 209 (1905). Courts are still wrestling with the public land issue today as government tries to find a fair and equitable way to charge the stock growers for use of public lands.
Finally, for purposes of this discussion, in 1918 the Wyoming Supreme Court reaffirmed their earlier rulings in a case entitled Garretson v. Avery 26 Wyo., 53 (1918). This case is one of the most cited cases in annotation of current Title 11 statutory law. "The common law rule requiring the owner of cattle and other domestic animals to restrain them has never been in force in this state, because of different conditions existing rendering the rule inapplicable, the owner of such animals having a right to permit them to run at large: and no actionable trespass is committed by such animals lawfully running at large straying upon enclosed lands. The reason for such non-liability, as explained in Gillespie v. Wheatland Industrial Co., is not because they are not trespassing, but because no duty rests upon the owner to keep his stock off unenclosed land and he is not guilty of negligence in failing to do so or in permitting them to run at large; and being guilty of neither a willful trespass, nor negligence in the care of his stock, he is not answerable in damages; and for the further reason that the land owner has the right to exclude such stock from his premises by fencing against them, otherwise preventing them from coming or being thereon, and if he neglects to do so takes the risk of trespass by animals lawfully running at large. But the rule of the common law that it is not the duty of the land owner to fence out or against the cattle or livestock of another is also the rule in this and other western states where the same conditions exist, in the absence of contract or statute imposing the duty upon the land owner, or unless such duty has arisen by prescription. And, as a general rule, where no obligation rests upon a land owner to fence out another's livestock, or to prevent them from straying or entering upon his land, the owner of unenclosed lands is under no duty to make or keep them in safe condition for stock straying thereon." The court went on to say that when a fence is in fact constructed, it must be lawful and maintained in a lawful manner in accordance with state law. However, these statutory requirements did not impose the duty to fence or to prevent the entry of another's cattle upon the owner's land. Also, the court did not define an unlawful fence.
Today, as one looks at the statutes regarding lawful fences and livestock, the language is not much different from it was in the 1800's and early 1900's, with a few exceptions. One of those exceptions is W.S. 11-26-101 which says that it is illegal to allow swine, goats or elk to run at large and sets forth a criminal penalty for a violation of this statute. While it is quite clear that swine, goats and elk are to be fenced in, state statutes do not specifically address other species of livestock, and the state relies on the case law discussed earlier.
As in Chapter 58 of territorial law, today's W.S. 11-28-108 allows for civil action or arbitration when one's lawful enclosure is breached by an offending animal, but clearly does not allow for any criminal action. Interestingly, the language of today's statue is very similar, if not the same in the majority of the statue, to what it was when it started out as Chapter 58 in the General Laws of the Territory of Wyoming. The most noticeable recent change is the addition of domestic bison to W.S. 11-29-108 in the 1995 legislative session.
What started out as an open range state has been further defined in case law over the years to be a fence out state with regards to cattle, and a fence in state with regards to sheep in case law, and a fence in state for swine, goats and elk set forth in statutory law. These italicized phrases are not really quoted often, if at all in case law, but have become popular vernacular over the years.
In a comment, The Open Range: A Vanishing Concept, 13 Wyoming Law Journal 136 (1959) gives the late Honorable Franklin Mockler's perception of the open range in Wyoming. At this time, Mockler felt that Wyoming was headed back to the common law rule of fencing livestock in as the state entered the second half of the 20th century. With only one exception (W.S. 11-26-101), we are in many ways similar to where we were in the late 1800's and early 1900's which seems to be working for Wyoming. However, as Wyoming becomes more populated, the concept of open range may no longer be feasible in the next century.