Over the years I have had a number of questions about fences. Most times they have been fairly easy to answer - usually it’s based on common sense. However, there are times when the question implies some suggestion of liability. This is where the common sense answer may not be appropriate.

Recently, I had two very different questions about fencing asked by two persons on the same day. That prompted me to research a possible answer. (I will refer to the specific questions again in this article and see if you can help me with the answer).

Since both these questions had potential legal ramifications, I thought it would be appropriate to learn more about California law as it applies to fencing on grazing lands. With the use of the Internet, it is possible to search for this information. I found the Web site, Official California Legislative Information (http://www.leginfo.ca.gov), which has a number of sections in both the Food and Agricultural Code and in the Civil Code that address grazing and fences.

The following is the information I thought addressed many of the questions I’ve received. These sections of the law should be of interest to livestock owners.

16901. It is unlawful for any person to do any of the following: a) Lead, drive, or conduct any animal along the track of a railroad, unless the railroad is built within the limits of a public highway or public place. b) Permit any animal to be placed within the fences of a railroad for grazing or other purposes if he had the right to prevent it.

16902. A person that owns or controls the possession of any livestock shall not willfully or negligently permit any of the livestock to stray upon, or remain unaccompanied by a person in charge or control of the livestock upon, public highway, if both sides of the highway are adjoined by property, which is separated from the highway by a fence, wall, hedge, sidewalk, curb, lawn, or building.

16903. It is unlawful for any person to drive any livestock upon, over, or across any public highway between the hours of sunset and sunrise, unless he keeps a sufficient number of herders on continual duty to open the road so as to permit the passage of vehicles.

16904. In any civil action which is brought by the owner, driver, or occupant of a motor vehicle, or by their personal representatives or assignees, or by the owner of livestock, for damages, which are caused by collision between any motor vehicle and any domestic animal on the highway, there is no presumption or inference of the owner or the person in possession of the animal.

17121. A lawful fence is any fence which is good, strong, substantial, and sufficient to prevent the ingress and egress of livestock. No wire fence is a good and substantial fence within the meaning of this article, unless it has three tightly stretched barbed wires securely fastened to posts of reasonable strength, firmly set in the ground not more than one rod apart, one of which wires shall be at least four feet above the surface of the ground. Any kind of wire or other fence of height, strength and capacity equal to or greater then the wire fence herein described is a good and substantial fence within the meaning of this article. The term "lawful fence" includes cattle guards of such width, depth, rail spacing, and construction as will effectively turn livestock.

17122. In any county or part of a county devoted chiefly to grazing and so declared pursuant to this article, a person shall not have the right to take up any astray animal found upon his premises, or upon premises to which he has the right of possession, nor shall he have lien thereon, unless the premises are entirely enclosed with a good and substantial fence.

17123. The following counties or parts of counties are declared to be devoted chiefly to grazing: a) That portion of Trinity which is outside of the area described in Section 17125. b) That portion of Shasta outside of the area which is described in Section 17126. c) Siskiyou, Lassen, and Modoc. d) Any county or part of a county, which is declared to be devoted chiefly to grazing pursuant to Section 17124.

17124. The board of supervisors of any county may by ordinance declare that such county, or part of such county, is devoted chiefly to grazing.

21851. As used in this article, “range” means the enclosed or unenclosed lands outside of cities, towns, and villages in this state, whether of the public domain or in private ownership, upon which by custom, license, or otherwise, cattle are kept or permitted to roam and feed.

21852. Any person that is not the owner or does not have the right of possession of any cattle, that is found driving such cattle off its usual range, without the consent of the owner, is guilty of grand theft.

CALIFORNIA CIVIL CODE

801* The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements: 1) The right of pasture. 6) The right of transacting business upon land. 13) The right of receiving more than natural support from adjacent land or things affixed thereto. 14) the right of having the whole of a division fence maintained by a coterminous owner.

841. Coterminous owners are mutually bound equally to maintain: 1) The boundaries and monuments between them. 2) The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.

* 18 land burdens or servitudes were listed in this section. I did not include those that did not apply to the subject of this article.

There may be additional laws that address this topic, and I would appreciate hearing from you if you have more information. Now for the questions you can help me answer:

Question 1: If cattle grazing on public lands enter unfenced private lands that are adjacent to the public lands to graze and water, who is responsible to keep the cattle off the private lands, and if a fence is required, who pays for its construction and maintenance?

Question 2: If cattle owned by a leasee continue to move off the leased land because of poorly maintained fences and enter another property that is not contiguous but in the vicinity of the lease, can these cattle be impounded, and the owner of the cattle be made to pay damages to the owner of the land impacted by these cattle?

If you have an opinion or if you have a legal basis for an answer to these questions, please let me know.