Have you ever wondered as you have wandered the wide open spaces of the West what those signs along the road with a cow on them and the words “Open Range” means? It’s really quite interesting how this sign came to be.
In 1862, Congress passed the “Homesteading Act of 1862” which was intended to open up large tracts of land, especially west of the Mississippi River, for the nation itching to “go west.” Immigrants and citizens alike saw the opportunity to start living the American Dream of land and home ownership. According to the requirements of the act, you only had to be 21 years old, head of a family or a military veteran, and with a small deposit establish a claim to a tract of land up to 160 acres.
The requirement for this land to be yours was to reside on and cultivate the land for a period of five years after the initial claim was made. At one point six million people took advantage of this act and 270 million acres of public land nearly 10% of the total acreage of 1,875,714,000 of the U.S.was given away. It is estimated that only a quarter of this land ever made it to citizens or immigrants, however, with the rest going to corporate interests, particularly railroad and timber industries. More than half of those settlers made good on their homestead endeavor while other early settlers could not keep their tract of land due to little experience with farming procedures, the harshness of the environment, and/or the scarcity of water which without civilization just couldn’t exist. (https://www.archives.gov/education/lessons/homestead-act)
Since this article has to do with the insurance implications of open vs closed range, a point of interest: according to Lars Powell, Executive Director of the Alabama Center for Insurance information and Research at the University of Alabama, this corporate greed and the distrust settlers had of large insurance corporations gave rise to farm mutual fire insurers. These mutual companies were usually associated with the grange movement which met many of the social and political needs of the settlers. Many of our major insurance companies today can trace their beginning back to the grange movement. The admonition to “go west, young man, go west” was in full swing.
At approximately the same era of time, 1866 to the 1890’s, nearly 5,000,000 cattle roamed the open range of Kansas, Nebraska, the Dakotas, Montana, Wyoming and Texas. During the time right after the Civil War, beef prices in Europe were incredibly high and some heady investors saw those roaming cattle herds as a tremendous opportunity to make them extremely wealthy. None of these cattle herds were privately owned so they were ripe for the taking. Foreign investments poured in and large cattle drives were organized to bring these cattle to market in the East.
The government saw it to be to the economic well being of the nation to ban any fencing of public land or on Indian reservations, so these big cattle drives were unimpeded. However, with the advent of the railroad and its opening up of so much territory, cattle industry and civilization were on a collision course. With a disastrously cold winter in 1886-1887 where thousands upon thousands of cattle were killed in the snow and ice, the large open range cattle industry heard its death knell. Investors who survived that winter turned their investments to buying land and creating large cattle ranches where with fencing and cowboys they could manage those herds more efficiently.
It wasn’t long before the needs of communities began to challenge the rights of cattlemen to the use of public land, so something had to be done to address the issues of liability in the event personal injury or property damage was the result of inevitable conflict.
States with these wide open tracts of land and an immense interest in the beef industry passed legislation much like this found in Idaho code Section 25-2118. Animals on open range–No Duty to Keep from highway.
“No person owning, or controlling the possession of any domestic animal running on open range, shall have the duty to keep such animal off any highway. On such range, and shall not be liable for damages to any vehicle or for injury to any person riding therein, caused by a collision between the vehicle and the animal. ‘Open Range’ means all enclosed lands outside of cities, villages and herd districts upon which cattle by custom, license, lease, or permit are grazed or permitted to roam.” (https://legislature.idaho.gov/statutesrules/idstat/Title25/T25CH21/SECT25-2118/)
No reasonable rancher would want to have his cattle be the reason someone would be injured or killed, so the practice of erecting a fence became a neighborly gesture of good will. In the event that cattle did get out and cause damages, he would not be liable for those damages.
Others built fences to keep wandering cattle off their property, so they attempted to protect themselves against such wandering beasts.
This brings us to the “open range” sign spoken of at the first of this article. Public awareness brought on by these signs helps to alleviate any question about liability prior to any claim being initiated. You know the fences which are there are built with the purpose in mind of keeping cattle off highways; but if they don’t, you will pay for the damages and/or injury caused by a collision.
Signs are also posted in some areas alerting drivers they are in a closed range designated area. If you live in a closed range area and own cattle, the responsibility for keeping cattle off the highway is the yours and you will be held liable for damages if you are not successful.
The third designation is herd district. These are areas where cattle traditionally ranged freely but now due to encroachment of society, it is not reasonable to continue the practice of open range cattle management. In this event, the cattle owner will be held to a closed range requirement and build fences with the intent of keeping the animals in. Injury or damage will be paid for by the owner of the animals.
There have been some movement recently of revamping the open and closed range definitions, so it would be informative for you to go to your county planning office to get a map showing the various areas in your county.
Just a thought–while we were in Hawaii on the road to Hana I saw a sign regarding open range chicken eggs so I wonder who has the right of way there? Hmmm!