Date of this Version
GREAT PLAINS QUARTERLY 30 (Winter 2010): 21-35
In North America, building fences was an essential part of life for the English settlers from the beginning. Departing from the English common law rule that required owners to fence in their cattle, nearly all the colonial legislatures and courts imposed upon landowners a duty to fence their property against trespassing cattle.l The reasons were partly to increase the meager supply of livestock by permitting cattle to wander about in order to breed faster and partly to make full use of the vast virgin forest and grassland. Gradually, however, in New England and in much of New York and New Jersey, where township settlement and mixed husbandry prevailed, this practice was replaced by the system of common pasturage. During the crop growing season, common pasture was set off and fenced, and herdsmen were employed by the towns to supervise grazing, but after harvest animals were allowed to roam at large until spring planting.2 In the southern colonies, where settlements were made by individuals without group cooperation, the landowners' liability was more strictly observed. Quite different from the New England practice, all the southern colonies prohibited the fencing of any land except the fields under actual cultivation. Thus nonlandholders commonly grazed their cattle and hogs on others' land. As late as the 1830s, Virginia planters were still trying to obtain legislation to permit the fencing of their whole estates or at least their pastures. The prohibition on fencing continued to prevail on each moving frontier, while in the older regions the open range gave way to the common law rule as they were more settled.
The Great Plains underwent a similar experience. One after another, the Plains states confirmed the rule of fencing that came to characterize all earlier American frontiers, requiring farmers to fence out domestic animals, which were allowed to run at large without liability. Yet the unique natural influence and social environment in the Great Plains did modify the traditional pattern of the open range in the East. The fencing conflicts between farmers and cattlemen in the Great Plains, as Walter Prescott Webb points out, greatly intensified and changed what had been a predominantly individual quarrel into an antagonistic confrontation.4 Gradually, however, as farmers came to predominate, they compelled the adoption of herd laws, freeing them of the obligation to fence and imposing liability on the owners of animals. Although the pace of the process differed from place to place, the animal liability laws in the Plains reverted to the principles established in English common law. This article is divided into three parts. The first examines specific fencing policies in Kansas, Nebraska, and other Plains states, highlighting the transformation from the "fence-out" to "fence-in" (herd laws) policies. The second part discusses the coming of the railroads to the Great Plains and the farmers and the ranchers as beneficiaries who soon became victims. And finally, the third section analyzes railroad fence laws passed in Nebraska, Kansas, and Oklahoma, the litigation over loss of livestock, and the unfavorable position the state courts generally took toward the railroads, based upon the dual nature of the railroad fence law.