This Article is divided into two parts. Part I examines the historical underpinnings of four statutes in Missouri that make up its fence law: The Open Range Act of 1808, the Division Fence Act of 1869, the Closed Range Act of 1883 and the Fence Act of 1963. Part II of this Article, which will be published in a later issue, will compare key aspects of Missouri’s fence law as it exists today.
Early on, the settlers of the Missouri Territory rejected the English common law notion of imposing an absolute duty on animal owners to restrain their animals. Instead, they rationalized that livestock should freely range over the largely undeveloped countryside. This rationale was embodied in the Open Range Act of 1808. If a landowner did not like his neighbor’s animals crossing over his lands, he was required to close off his fields with a “lawful fence.” Under this Act, if a trespassing animal caused damaged to someone’s land, the livestock owner could not be held liable unless the landowner could show that the trespassing animal came over or through his lawful fence. This Act specifically covered such animals as “horses, cattle, swine and like stock.”
Free ranging largely came to an end after the Civil War when the legislature passed the Division Fence Act of 1869. This Act marked a radical departure from earlier times by requiring adjacent landowners to erect and maintain a “division fence” between their properties. The purpose of a division fence was to keep a person’s animals from entering an adjacent owner’s land. Another radical change was that a landowner was entitled to seek compensation for damages caused by trespassing animals as well as reimbursement for repair and/or replacement costs of defective portions of the division fence. With the Fence Act of 1869, the legislature clearly took aim at limiting the practice of free ranging.
In 1883, the Missouri legislature took another major step in that direction by enacting the Closed Range Act, which imposed a duty on livestock owners to restrain their animals from running at large. This Act covered “any animal or animals of the species of horses, mule, ass, cattle, swine, sheep or goat.” Domestic geese were later added to the list of animals covered by this Act. While containing no express provision for fencing animals, it clearly implied that livestock owners were responsible for restraining their animals. It also held that livestock owners could be held liable for damages caused to a neighbor’s land, and that a landowner could seek compensation for restraining and safeguarding animals that were found running at large.
If your county has adopted the 1963 Fence Act, your fence is governed by a combination of that Act and the Closed Range Act of 1883. If it has not adopted the 1963 Fence Act, your fence will be governed by the Division Fence Act and the Closed Range Act (but not the Open Range Act, as the Closed Range Act largely suspended the practice of free grazing altogether in Missouri). While knowing which set of rules governs your fence may seem a bit confusing, it really depends on whether or not your county has adopted the 1963 Fence Act.
In the second part of this Article, we will look at key aspects of Missouri’s fence law as it exists today. In a side by side comparison, you will see that, for all practical purposes, there really are no substantial differences in how Missouri law governs fences from one county to another.
Jerry W. Potocnik is an attorney in Blue Springs, Missouri. He practices mainly in the areas of real estate, estate planning, probate administration and litigation. Mr. Potocnik grew up on a farm near West Mineral, Kansas, where his parents continue a family farming operation.
