The Glenwood post., 1916-10-07

The Post is indebted to R. C. Callen
of this county, member of the state
board of stock inspection commission
ers, for an opinion from J. w. Kelley,
attorney for the board, giving some de-
ductions on the proposed herd law
which should be of more than ordinary
interest to Post readers, and excerpts
of the same are given herewith.
Replying to your letter of the 9th
so-called *herd law" which is to be
voted on in Colorado at the general
election. November 7, 1916, will say:
The name ''herd law" as applied to
this proposed measure is misleading,
as livestock in charge of herder arc
not exempt from its sweeping provis-
ions. The gist of the proposed law IS
IN the first paragraph thereof, viz:
'Sec. ]. The owner, person in
possession, or caretaker of any do
mestic animal. or animals, shall,
hereafter be liable for any injury
or damages done by said domest-
ic animal. or animals"
This completely and radically changes
the existing law which has been N
force, independent of statute, since the
first settlers came to this state The
portion of the common law of England
which requires livestock to be kept in
fenced enclosures never was in force
in Colorado. In Richards VS.. Sander
son the supreme court of Colorado has
said:
''The principle of law derived
from England, that the owner must
prevent his stock from going on
the unenclosed lands of his neigh
Dor is not applicable to the vast
regions of the public domain which
have been open to stock grazers
for more than century,
AS far back in Colorado history as
the ease of Morris vs. Frakcr, the same
rule with respect to allowing stock to
run at large has been announced by
our supreme court. This rule is not
founded upon the so-called fence stat
utes. but exists independent of anv
statute, and is an outgrowth of the ne
cessities of the state. in which more
than two-thirds of the land is open
range.
The proposed "herd law arbitrari-
lv does away with this long established
rule. 1t not only gives to the person
whose property is trespassed upon by
domestic animals. whether with or with
out the fault of the owner claim for
damages. but places in his hands most
peculiar and powerful means of en-
forcing this claim.
Sections 2, 3, 4, and of the
'herd law' provide that any domestic
animals trespassing On property may
be taken up and kept at the expense of
their owner. who shall he notified off
KNOWN IT subjects livestock to a
lien by the owner of property on whose
land they go whether fenced and cul-
tivated or not) if he claims damages.
and this lien can only be released bv
the payment of the damages elaine l..
or by the execution of bond Htw,
responsible sureties each resident
of the county, in which the animals
are. This is greater exaction in the
way of bond than is required in at
tachment and replevin cases. where the
statute saws there shall be Gone ,r
more sufficient suretics' none of
whom need necessarily be resident of
the county.
To furnish this bond under the So
called "herd law" will work great
hardship. For example, if farmers
cattle stray into another county many
miles away, and are taken up by some
one on whose unfenced land they go,
the owner can only get them released
by paying whatever the taker up
claims as damages, or by giving bond
on which he cannot have two residents
of his own county, where he is known,
but must have two residents of the
county in which the animals are. This
puts means of extortion in the hands
of anyone who wishes to take up an
others livestock.
The provision that when animals are
taken up under an alleged claim Of
damages, the owner shall be notified
''if known' opens the door to the
greatest abuse. Suppose for example,
the unbranded calves of any person are
found upon the unfenced property Of /
another. The owner Of the property /
may take them up and not knowing
the owner, need not give him any mo-
tice, but proceed to collect his alleged
damages by suing some one in collusion I
with him, whom he alleges to be the