The Dakota Herd Law
In April 1874 the Bismarck Tribune saw fit to remind residents of the territory of the provisions of a certain law that had been passed by the territorial legislature in Yankton in 1871: the “Dakota Herd Law.” In order to avoid misunderstandings and disputes, people needed to know that the law had repealed the practice of open range in Dakota Territory.
The Dakota Herd Law implemented the principle of animal liability. If a person’s livestock were running at large, trespassed on someone else’s property, and did any mischief—whether it was eating crops or pulling laundry off the line—the livestock owner was liable for damages.
A property owner suffering damages was entitled to take up the offending animals and hold them as security, providing he notified the owner. Subsequent court actions not only could enforce dollar amounts of damages but also compel payment for feeding stock that had been taken up and even authorize the sale of the animals for compensating the aggrieved party.
This was a rather radical act of the territorial legislature, one declaring solidarity with farmers against open-range stockmen. It also recognized a fact of life on the prairies: the dearth of trees to make posts and rails for fencing. The cost of fencing might be prohibitive for farmers if they had to fence their crops against roving stock.
I know we generally assume that in the old west, disputes over livestock and property and fences were commonly settled by force of arms, but in fact, they usually were legal matters to be settled according to law. And they were important. They were not just arguments between cranky neighbors. They were decisions about how the land was to be partitioned and used, about the very nature of the emerging society on the ground.
Common law coming to lands colonized under British influence rapidly adapted to open country in places like North America or Australasia. In the old country, generally, the law of animal liability had prevailed. In a new country, this was reversed: livestock were set free to make use of the forest and prairie, and farmers had to fence their crops.
This situation initiated a sort of succession whereby farmers in time became more numerous and influential and demanded a change in the law. Thus the Dakota Herd Law of 1871. Such a statute ended fence law, which required farmers to fence, and implemented herd law, which required stockment to restrain their beasts, either by fencing or by herding them. Settled country, no longer the wild west, required the herd law.
There was a whole vocabulary having to do with such matters. Formally, to take up trespassing livestock was to distrain the animals. If authorized by local law, they might be placed into a pound, a pen, for restraint, and put in the charge of an individual known as the poundkeeper.
A legal fence was one that met statutory requirements—the number and type of wires or type of other materials; questions of damages often hinged on whether a legal fence was in place.
A herd law might be implemented by local option or county option—that is, there might be a territorial or state law sanctioning herd law, but relying on local governments to invoke and enforce it. This shifted the political controversy to the local authorities and the debate to the local press.
Territorial herd law carried over to state law, so it might seem there was no issue to debate in North Dakota—but there was. There were plenty of open-range stockmen out there, Teddy Roosevelt among them. Eventually farmers caught up to them, and there was dispute about the future. This we can follow from place to place by the archive of local newspapers. Serious at the time, it can be entertaining in retrospect.