The Monte Vista journal., 1916-10-21

To the Voters OF Colorado:


for an act entitled "A bill for an act
in relation to the running OF stock at
large" said bill to be presented to the
voters for their approval at the cleo
tion in November; and II being fur
ther represented TO this board that
said bin was being presented to the
voters, as bill for a herd law. y
while as matter of fact 4 vas not
n herd law, but would work great
and irroparable damage TO the live
stock industry OF this state. ii was
ordered by the board: That the b!ll
bo referred to the Attorney General
OF tho stats and the official attorney
of this board for n written legal opin-
ion as to the effects of such bill II it
should be passed into law by the
voters of the state.
AT the regular meeting of the
board on September 20, the attorney
OF the board submitted the following
opinion:
To the State Board OF Stock Inspec-
ton Commissioners. Capital Build
Ing, Denver, Colo.
Gentlemen: Replying to your let
ter OF the 9Th instant, regarding the
legal effect of the so-c2llcd herd law,
which is to be voted on in Colorado
at the General Election, Nov. 9TH,
1916, will say:
The name herd law as applied
to this proposed measure is mislead-
ing, as live stock In charge of herd
er are not exempt from It's sweeping
provisions. The gist of the proposed
law Is in the first paragraph thereof,
viz:
Sec. /. The owner, person in pos
session or carctaker Of cny domestic
animal or animals shall hereafter be
liable for ..ny injury or damage done
by said domestic animal or animals"
This completely and radically
changes the existing law, which has
been In force, Independent of statute,
since the first settlers came to this
state. The portion of the common
law Of England which requires live
stock to be kept in fenced enclosures,
never was in force in Colorado. In
the case of Richards vs.. Sanderson,
SO Colo. Rep. p. 270, the supreme
court OF Colorado said:
THE principle of law derived from
England, that the owner must pre-
vent his stock from going on the un-
enclosed lands of his neighbor. is not
applicable to the vast regions of the
public domain which have been open
to stock graZers for more than cen
tury."
AS far back in Colorado history as
the case Of Morris VS.. Fraker, re-
ported In Colo. 425. the same rule
with respect to allowing live stock to
run at large has been announced by
our supreme court. This rule Is not
founded upon the so-callcd fence
statute (Sec. 1857, 25S9, Rev. Stat.
Colo. 190S), but exists Independent
of any statute. and Is an out-growth
OF the necessities of the state, In
which more than two-thirds of the
land is open range. 1t might proper
ly be called the unwritten law of
Colorado, and is analogous to that
sound, necessary and peculiarly
Western doctrine that the water in
our streams does not belong to the
owners OF the land along the stream,
as In the East, but to those who first
make beneficial use thereof. The
rule in Colorado has always been
that live stock may grazc at will
upon the open range.
Changes Established Rules
The proposed herd law" arbitrar-
lily does away with this long -estab-
lished rule. 1t not only gives to the
person whose property is trespassed
upon by domestic animals, whether
with or without the fault of the own
er. a claim for damages, but places
in his hands a most peculiar and
powerful means of enforcing this
claim.
Sections 2, 3. 4, and of the
herd law" provide that any domest-
ic animals trespassing on property
may be taken up and kept at the ex-
pense of their owner, who shall be
notified III known" 1t subjects live
stock to n lien by the owner OF pro-
perty on whose land they go (wheth-
er fenced and cultivated or not) II he
claims damages. and this lien can on
ly be released by the payment of the
damages claimed. or by the execu-
tion OF q bond with Two responsible
sureties. each a resident OF the coun-
ty" in which the animals arc. This
is greater exaction in the way of a
bond than is required in attachment
and replevin cases. where the statute
says thcre shall be "one or more
sufficient sureties," 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: II farm
er's cattle stray into another county
many miles away. and are taken up
by some one on whose unfcnccd land