Don't Fence Me In

by Sophie Rowlands

Apparently, you can still buy a home in California where the cattle (if not buffalo) do roam. Just look for property located within a designated Open Range area. Pursuant to California Food and Agriculture Code section 17124, the board of supervisors in any California county may pass an ordinance devoting the entire county or certain portions of it to livestock grazing. Such areas do not have to be limited to publically owned lands; they can and often do encompass privately owned lands.

Once an area has been designated open range, the laws regarding wandering animals change significantly. Under normal circumstances, the owner of livestock is required to keep them contained, and is responsible for any damage done to people or property by an animal that gets loose. These requirements are known as "fencing in" laws and "estray statutes." However, within a designated grazing area, the law changes to one of "fencing out", meaning any property owner who does not want cattle to wandering onto their property must build a fence to keep them out. If that person chooses not to build or maintain a fence, he has no right to sue for trespass, or to reimbursement for any damage inflicted by the cattle. "Fencing out" was actually the law in California until 1915. Although the legislature was forced to repeal those laws due to increased urbanization and the conversion of land from ranching to other uses, individual counties still retain the right to apply fencing out laws by enacting open range ordinances.

Recently, a private property owner in Plumas County challenged the constitutionality of an open range ordinance. Among other things, the plaintiff claimed the ordinance amounted to a "taking" or his property under both state and federal law. The Third District Court of Appeal did not agree. In Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, the court determined that the ordinance was constitutionally valid.

To begin with, a physical taking occurs only when the government requires the landowner to allow physical occupation of his land. The grazing ordinance, in contrast, does not require that plaintiffs or any other landowner allow cattle on their land. It merely prevents them from suing the owner of wandering cattle if they choose not to put up a fence. The ordinance also does not interfere with plaintiffs inherent property rights, since they still have the right to build a fence and exclude anyone, including wayward cattle. Nor, the court said, does it limit the plaintiffs best-- or really any-- use of their property.

Further, the plaintiffs were not without remedies of their own. Aside from the obvious solution of building a fence, under the ordinance property owners are perfectly free to try and move the cattle along themselves, or contact the owner of the cattle and request they be moved. Additionally, property owners still have a cause of action against ranchers who intentionally herd cattle onto their property- they may sue for damage or charge the rancher rent. And while the court did not totally discount the impact that cattle may have on a piece of property, it felt that such negative effects were "potential" and limited because of the ambulatory nature of the animals. Finally, the court found that the use of rural property for grazing is a legitimate governmental purpose.

The case is worth noting as it is instructive as to what types of municipal ordinances do not qualify as takings. The ordinance at issue did not mandate that the property owners tolerate the presence of either the government or a third party on their land. It did not interfere with the property owners' traditional "right to exclude". It did not put limitations on the use of the property, and the economic burden (in this case, "the occasional use of and damage to property caused by wandering cattle as they move on") was found to be minimal and tied to a legitimate governmental purpose.

And who knows? The County of Plumas and other grazing counties may just become the destination of choice for those who really do want a home where the cattle might roam.

Sophie Rowlands is a law clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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