Challenge to Open Range Doctrine Fails on Constitutional Grounds

Herzberg v. County of Plumas, 34 Cal. Rptr. 3d 588 (Cal. Ct. App. 2005)

The "open range doctrine" is a rule of law that provides that no liability shall attach to the owner of cattle for the trespasses of the cattle in open range, unfenced districts, unless the landowner has erected a suitable fence. This is known as the fence-out provision, and it is a notion that has existed in American law since the middle of the 19th century. Cases in some states have extended the open range doctrine to preclude liabilityfor cattle owners whose animals wander into roadways and cause collisions with motor vehicles. That is something quite different.

In this case, the plaintiffs challenged a county open range statute that, they say, compelled them to accept the trespasses of cattle belonging to their neighbors without recourse. This, they alleged, was a taking of private property for public use without compensation. The landowners further alleged that their property was trampled, damaged and, as is customary among cattle, that it was pooped upon.

The court found that the essential elements for a taking did not exist, as the only remedy the plaintiffs were precluded from in addressing the issue was distraint of the cattle.