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The Open Range Doctrine

In the early days, when the eastern states were still colonies of Great Britain, farmers were bound by the doctrine of common law. Farmers who owned animals that were likely to roam, like cattle or horses, were responsible for any damage done by those animals. This made fencing necessary to keep animals in, as opposed to fencing grain or vegetable acres to keep animals out. This rule came from England and made sense in densely populated areas.

It didn’t make sense, however, for the vast expanse of the Great Plains. Consequently, states and territories began enacting laws that were more workable. In its early days, for example, Montana adopted the open range doctrine, allowing a rancher to let his animals roam, leaving it up to his neighbors to fence the animals out.

Much of the grazing land was owned by the government and used in common by many ranchers. So, it was impossible to erect fencing. In addition, fencing the limited cropland was less expensive that fencing extensive tracts of range land.

On this date in 1904, the Washburn Leader reminded readers about North Dakota’s herd laws. By 1904 the state had become more populated and expectations had changed. From April through December ranchers now faced limits on allowing livestock to run loose. Those months provided time for the growing season and the harvest.

But from December through April, the animals were allowed to roam, and all hay and other property had to be protected by a legal fence. The fence had to be made of substantial posts no further apart than thirty-two feet. There had to be two smaller stays between the main posts, and the fence had to have three wires, with the top one at least forty-two inches above the ground. If such a fence was not in place, the rancher could not be held responsible for any damage done by his animals.

Today, North Dakota honors a mix of the common law and the open range doctrines. There are still areas where livestock is allowed to roam, but in other areas ranchers are responsible for any damage done by their animals.

Dakota Datebook by Carole Butcher


Washburn Leaders. “Herd Law.” Washburn ND. 12/3/1904. Page 1.

Washburn Leader. “North Dakota Herd and Estray Law.” Washburn ND. 3/16/1906. Page 6.

Braaten Law Firm. “Herd Laws and the Open Range Doctrine: Livestock.” https://www.braatenlawfirm.com/2018/02/08/herd-laws-open-range-doctrine-livestock-owner-liability/   Accessed 10/20/2019.

AgWeek. “Herd Laws on the Open Range.” https://www.agweek.com/business/agriculture/3789708-herd-laws-open-range   Accessed 10/20/2019.

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