Fences and fence lines have caused so much trouble in the Big Bend over the years that I was pleased to receive from my friend David K. Langford a beautiful little 30-page booklet called Five Strands: A Landowner’s Guide to Fence Law in Texas, just published by Texas A&M’s AgriLife Extension Service. Langford, who lives on a beautiful Hill Country ranch near Comfort and is a dedicated conservationist as well as a prize-winning photographer, keeps me up-to-date on publications that relate to land ownership and stewardship.
In the fence pamphlet’s preface, the authors, Tiffany D. Lashmet, James D. Bradbury and Kyle K. Weldon, say that they wanted to produce a “short, easy-to-follow guide” that “would fit into the glove box of a pickup.” They have succeeded admirably, and the result makes fascinating reading for any Texan who has ever watched the fence posts roll by from the windows of a moving car or has pondered the violence that has periodically erupted in our state over fencing issues.
I love books that get right to first principles, and that is exactly what Lashmet, Bradbury and Weldon do with Texas fence law. The first principle here, they explain, is that all Texas fence law derives from the legal doctrine that in Texas livestock owners may let their animals roam where they will and that it is the responsibility of the farmer to protect his crops from them by constructing sound fences to keep them out of cultivated fields.
This may seem counter-intuitive to urban folks who are used to thinking of fences as devices that confine cows to pastures, but in fact it is one of the basic differences between English and American common law. In densely populated England, the law required livestock owners to pen their animals or use herdsmen and held them responsible for damage done by their animals to unfenced crops. But in colonial North America, with its surplus of land, the onus was on the farmer who was required to fence his fields against free-grazing livestock.
As the country filled up, this became a hotly debated question, and in the 19th century, especially in the South, a lot of printer’s ink was used debating the “fence law question.” In 1855 a journal called The Southern Cultivator described the American system as “the heavy tax to which American agriculture is subjected by reason of that early colonial system of compelling every cultivator to fence his crops instead of requiring every owner of livestock to keep them out of his neighbor’s fields. . . . Corn and cotton never travel off their owner’s land to injure others. As much cannot be said of hogs, sheep, cattle, and horses.”
Nonetheless, the open range remained the foundation of fence law in most Southern states including Texas. The authors of Five Strands cite a 1999 Texas Supreme Court opinion that says “it is the right of every owner of domestic animals in this state . . . to allow them to run at large.”
However, the authors go on to say, there are two important exceptions to the open range rule, and these exceptions are why you do not collide with a cow whenever you get behind the wheel of a car. The first is a state law dating to 1925 that requires landowners with property adjacent to U.S. and state highways prevent their animals from entering those highways, effectively making all land adjoining such highways closed range, fenced in.
Note that this law does not apply to Farm to Market Roads, county roads, or state loops and spurs, which is why you still have to keep a sharp eye out for cattle on the western end of the Scenic Loop in Jeff Davis County. The second exception, and this is where it gets truly complicated, is where there is a county stock law in force.
In 1876, the Texas Legislature recognized that is was impractical to have open range everywhere, especially in heavily agricultural counties, and passed a law permitting counties to hold local stock law elections to modify the open range rule. In spite of the injunction in the musical Oklahoma that “the farmer and the cowman should be friends,” these elections were often bitter and hard-fought, pitting ranchers against farmers, and the result has been a patchwork of stock laws all over the state.
Some counties have passed laws making only part of the county closed range and leaving other parts open range, and some have passed laws that apply to some species of livestock but not to others. The Texas Agricultural Code currently permits counties to pass laws that regulate cattle, domestic turkeys, donkeys, goats, hogs, horses, jacks, jennets, mules and sheep but requires a separate law for each species. Some counties, for instance, may be open range for cattle but closed range for horses and donkeys.
There is, however, an exception to the exception. Section 143.072 of the Texas Agriculture Code prohibits 22 counties from passing a local option stock law, so those counties are permanently open range. The counties are scattered across the state from Jasper, Newton and Jefferson in deep East Texas to Wharton on the Gulf Coast to Presidio, Hudspeth and Culberson in the Trans-Pecos, and they would appear to have little in common. The best legal minds I have consulted have been unable to uncover the rationale that created this list or even the date that it was created. It is one of Texas’s deepest legal mysteries.
The authors of Five Strands advise anyone trying to find out where their county fits in this mosaic to “contact the county sheriff’s office or ask the county clerk to search the election records to determine if a local election has been held to close the range.” They do caution, however, that “since many of these stock law elections occurred between 1910 and 1930, it may take extensive research to determine the status of your county.”
Five Strands also deals with issues such as who is liable when a vehicle hits a cow on the highway, how do you get a neighbor’s stray cattle off your land and even who is responsible for a tree that overhangs a fence. But the best advice in the book is in the closing sentence of the preface: “Remember, the law will never substitute for an understanding between two neighbors over a cup of coffee.”
That cup of coffee might have saved a bunch of lives in the Big Bend.
Additional info for the info box:
For your free, downloadable copy of Five Strands: A Landowner’s Guide to Fence Law, go to www.agrilifebookstore.org and search for the title.