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5/06/2006
Open range? By Larry Gabriel South Dakota Secretary of Agriculture Can a South Dakota livestock owner be held liable for cattle involved in an accident on a public highway? The answer is a definite "maybe". The South Dakota Department of Agriculture receives calls from law students and insurance adjustors all the time wanting to know if there is any "open range" left in South Dakota. We tell them, "Sure there is, sometimes, maybe, depending on what you mean by that term." There is no answer to that question, because it is the wrong question. Open range is a traditional term that no longer means what it once did, but people cling to it like it was granddad's favorite LC Smith shotgun. They make movies about it. We fought range wars about it. It made people like Billy the Kid and Pat Garrett famous. People like it. Under the common law (the uncodified law created by judicial decisions) a livestock owner was strictly liable for damages caused by the wanderings of his animals. Western states reversed the common law and gave free rein to livestock expansion. In the old cowboy days, (1850s to 1890s) open range meant a place where anyone (including a lot of foreign investors and speculators) could run their livestock and not pay for the grazing privileges. Eventually Western states adopted some version of the Nebraska "Herd law", which created some liability for animal trespass and gave some protection from crop damage to farmers. Gradually, animal trespass laws were written to protect adjoining landowners and fencing laws gave the adjoining owners the power to force the building of a partition fence with both sides sharing in the cost. However, none of these laws answer the real question of today. The real question is this: Does a South Dakota owner of livestock have a legal duty to protect motorists by keeping their livestock off the public highways? The answer depends on the location and all the circumstances. Generally a livestock owner does not have that duty inside the Black Hills Fire Protection District or on his own land traversed by a road, if he puts up gates and warning signs. In the rest of the state, he has a duty to control his stock in a non-negligent manner. What is a non-negligent manner you ask? Only twelve jurors can answer that on a case-by-case basis. Some duty exists under some circumstances, but it is a legal duty with few definitive standards. The rest of the world may not understand our "open range", but our law is accomplishing one of its goals. We no longer decide such disputes by shooting it out amongst ourselves. The only way to guarantee failure is to not try. Secretary Larry Gabriel
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