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Status of Trespass Laws in Oklahoma As They Affect Ranchers and Farmers

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Status of Trespass Laws in Oklahoma As They Affect Ranchers and Farmers Tulsa Law Review Volume 4 Issue 2 1967 Status of Trespass Laws in Oklahoma as They Affect Ranchers and Farmers John Keefer Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation John Keefer, Status of Trespass Laws in Oklahoma as They Affect Ranchers and Farmers, 4 Tulsa L. J. 212 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol4/iss2/4 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Keefer: Status of Trespass Laws in Oklahoma as They Affect Ranchers and F TULSA LAW JOURNAL [Vol. 4, No. 2 NOTES AND COMMENTS STATUS OF TRESPASS LAWS IN OKLAHOMA AS THEY AFFECT RANCHERS AND FARMERS The ranchers and farmers of Oklahoma have expressed their concern as to the status of the trespass laws of this state and their effect upon the rights and liabilities of the members of the agri- cultural community. This paper will attempt to categorize some of the more significant statutes and court decisions in this area and point out the changes that have been made in the law. The subject matter has been divided into two main headings: the first will deal with perhaps the more important topic- that of tres- pass by domestic animals and its consequences to the owner while the latter part of the article will deal with personal trespass. I. TRESPASS BY LIVESTOCK Prior to 1965 the law with regard to trespassing domestic animals was found under various sections of the Oklahoma herd law.' Effective January 1, 1966, a significant portion of the herd law was repealed.! The most important feature of the new legisla- tion is the fact that open range counties are no longer permitted' nor does the law any longer permit the creation of stock districts wherein livestock could run at large throughout the district.4 The , Okla. Sess. Laws 1965, ch. 117, § 2. 'OKLA. STAT. tit. 4, § 98 (1965) now provides that WE...[ail domestic animals shall be restrained by the owner thereof at all times and seasons of the year from running at large in the State of Oklahoma. Damages sustained by reason of such domestic animals trespassing upon the lands of another shall be recovered in a manner provided by law. For the purpose of this act, domestic animals shall include cattle, horses, swine, sheep, goats, and all other animals not considered wild but shall not in- clude domestic house pets." 3OKLA. STAT. tit. 4, § 94 (1961), which has now been repealed, Okla. Sess. Laws 1965, ch. 117, § 2, provided that all domestic animals were to be restrained by their owner and all damages sustained by reason of their trespass upon the lands of another could be recovered in a manner provided by law. This section exempted certain counties from its opera- tion (open range counties). The new law has invalidated these exemp- tions. 4 OKLA. STAT. tit. 4 § 101 et seq. (1961), repealed Okla. Sess. Laws 1965, ch. 117, § 2, provided that residents of any county within the state could, by following the prescribed statutory procedure, create stock dis- Published by TU Law Digital Commons, 1967 1 Tulsa Law Review, Vol. 4 [1967], Iss. 2, Art. 4 19671 NOTES AND COMMENTS owner of domestic animals in this state is under a strict statutory duty to restrain those animals within the confines of the land which he owns or occupies.' This duty is similar to that which was imposed upon the owner of domestic animals at common law. Under the common law rule, the owner of domestic animals kept them at his peril and was strictly liable for any damages resulting from his failure to keep the animals properly restrained. Liability for damages resulting from trespassing animals did not depend upon whether the owner was negligent in allowing them to escape except in cases where the animals were being driven on the high- way in which case proof of negligence on the part of the owner was necessary to recover for damages the animals caused.! If the animals committed a trespass upon the lands of another the fact that the land intruded upon was improperly fenced was immaterial since no one was required to fence against domestic animals in the absence of an agreement to that effect.' The common law rule was eventually modified in a number of states through the enact- ment of fencing laws under which cultivated lands were required to be fenced before the landowner could recover damages from the owner of livestock which had broken through a fence and in- truded upon the land.! With the increased cultivation of lands which had formerly been used primarily for open grazing pur- poses, many state legislatures utimately enacted herd laws or tricts. Once these districts were created, owners of trespassing domestic animals could not be held liable for the damages the animals caused unless they intruded upon land fenced for agricultural purposes pursuant to OKLA. STAT. tit. 4, § 115.3 (1961) repealed Okla. Sess. Laws 1965, ch. 117, §2. The land owner also could not be enjoined from allow- ing his livestock to run at large throughout the district. See Inselman v. Berryman, 180 Okla. 136, 68 P. 2d 527 (1937). 'Foster and Keeton, Liability Without Fault in Oklahoma, At Common Law and Under Statutes, 3 OKLA. L. REv. 1, 15, 192 (1950). 'Id. at 12. '3 C.J.S. Animals § 185 (1936); Miller v. Parvin, 111 Kan. 444, 207 Pac. 826 (1922); Raziano v. T. J. James and Co., Inc., 57 So.2d 251 (La. CA. 1952); Thompson v. Mattuschek, 134 Mont. 500, 333 P.2d 1022 (1959; Molton v. Young, 204 S.W.2d 636 (Tex. Civ. App. 1947). 'Garcia v. Sumrall, 58 Ariz. 526, 121 P.2d 640 (1942);- McKee v. Clark, 115 Mont. 438, 144 P.2d 1000 (1944); Stewart v. Oberholtzer, 57 NM. 253, 258 P.2d 369 (1953); Molton v. Young, supra note 7. https://digitalcommons.law.utulsa.edu/tlr/vol4/iss2/4 2 Keefer: Status of Trespass Laws in Oklahoma as They Affect Ranchers and F TULSA LAW JOURNAL [Vol. 4, No. 2 "fencing in" statutes. Under these laws the owner of domestic animals was prohibited from allowing them to run at large outside the confines of his own land. The effect of such legislation was a reinstatement of the common law rule of strict liability with the result that owners of livestock were once again required to restrain their animals at their peril and were held strictly liable for their failure to do so.' It was held in an early Kansas case"0 that herd laws repeal fencing statutes to the extent that the herd laws impose liability upon the owner of livestock which trespass upon the land of another even though such land is not enclosed by a fence." The Oklahoma law is rather confusing in this area since the statutes not only provide that the owner of domestic animals must keep them restrained at all times but also provide for a fencing law12 un- der which the owner of any trespassing domestic animal "... shall be liable for all damages done by animals breaking through or over lawful fences and trespassing upon the enclosed land of 3 another ... ." In an early Oklahoma decision, the Supreme Court ruled that in counties wherein livestock was permitted to run at large, the owner of livestock which broke through a fence enclosing cultivated farm land couldn't be held liable for the resulting damages to crops enclosed therein unless the area was protected by a lawful fence.' Since Oklahoma law no longer per- mits cattlemen to run their stock at large in any county within the '3 CJ.S. Animals § 185 (1936); PRossEm, ToRTs § 75 (3rd ed. 1964); Miller v. Parvin, sapra note 7. "Miller v. Parvin, supra note 7. Casad, The Kansas Law of Livestock Trespass, 10 KAN. L. REV. 55, 62 (1961). 2OKLA. STAT. tit. 4, § 155 (1961). "3Bottems v. Clark, 38 Okla. 243, 132 Pac. 903 (1913). 1OKLA. STAT. tit. 4, § 154 (1961) sets out the requirements for a law- ful fence in Oklahoma. The fence is lawful under this section if it is constructed of three rails or three boards not less than six inches wide and three quarters of an inch thick. Fence posts must not be more than ten feet apart where rails are used and not more than eight feet apart where boards are used. Any other fence, which, in the opinion of the fence viewers is equivalent to such a fence is lawful provided, that the lowest rail, wire or board is not more than twenty nor less than sixteen inches from the ground. The fence must be at least fifty-four inches Published by TU Law Digital Commons, 1967 3 Tulsa Law Review, Vol. 4 [1967], Iss. 2, Art. 4 1967] NOTES AND COMMENTS state, this decision no longer would appear to have any validity. It does serve, however, to show the extent of the obligation that was placed upon the farmer in open range counties or stock districts if he was to recover damages to his crops or land resulting from trespassing livestock. Obviously, the new law reverses this obliga- tion by placing a statutory duty upon the landowner to fence his livestock in rather than upon a neighboring landowner to fence the animals out. The only problem that might arise under the Oklahoma law in its present state with regard to lawful fences would be the con- struction of OKLA.
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