What to Do With That Wandering Bull
By Ellen H. Brisendine
You’ve heard the old joke, paraphrased here: A young bull and an old bull look down the hill at a herd of cows in the next pasture. The young bull turns to the old bull and says, “I’m going to run down the hill and date one of those cows!” The old bull looks at the young bull with a squint and says, “I’m going to walk down the hill and date ALL of them.”
And if your fence happens to be in between either of those bulls and the cows, then you may have an estray bull and a damaged fence.
What’s the right thing to do about the estray bull? What’s the right thing to do about the fence? Fortunately, we have some good advice from Heath Hemphill, rancher, Texas and Southwestern Cattle Raisers Association (TSCRA) director and Coleman County District Attorney, from TSCRA Special Ranger Robin Clark, and from TSCRA members who have written a booklet answering common questions about fences and the law.
Hemphill says he has great neighbors and really hasn’t experienced the problem of a bull straying onto his family’s ranch. However, he and the neighbors have talked out a what-if scenario and decided, “We would pen the bull, get it tested for trichomoniasis, and send the vet bill to the bull’s owner. Then we’d keep the bull in quarantine until we knew the test results, and then return the bull,” Hemphill says.
Special Ranger Clark, based in Uvalde, adds to this advice. “If a bull strays onto your land, the first step is to call the sheriff and report the stray,” he says. In many cases, the sheriff then calls a special ranger to check the bull’s brand to determine ownership. “I can’t stress enough how important it is to brand your cattle,” Clark says. “That is the best way to make sure your property is returned to you, should the livestock stray.”
Clark also recommends having stray cattle tested for trichomoniasis. Known as trich, this disease can cause widespread abortion in cow herds, causing a rancher to lose much, if not all, of an annual calf crop. Read more about trich on page 133 of this issue.
Three legal minds have developed a handy booklet that answers common legal questions about fences and estray livestock. It can be found at agrilife.org/texasaglaw. Type “Five Strands: A Landowner’s Guide to Fence Law in Texas” into the search box.
Tiffany Lashmet, assistant professor and Texas A&M AgriLife Extension specialist, Jim Bradbury, partner, James D. Bradbury, PLLC, and Kyle Weldon, Texas A&M University School of Law, authored the booklet. For the sake of clarity in this article, we’ll refer to Bradbury, Lashmet and Weldon as the authors.
They explain what the law says about removing stray livestock.
“Under Chapter 142 of the Texas Agriculture Code, a landowner who finds stray or ‘estray’ livestock on his or her property should ‘as soon as reasonably possible, report the presence of the estray to the sheriff of the county in which the estray is discovered.’
“Providing the location, number, and a description of the stray livestock helps the sheriff’s office find the true owner and remove the livestock from your property. Once stray livestock are reported, the sheriff will attempt to contact the owner. If the owner is found, he or she may recover the livestock in accordance with the procedures set forth by statute.
“If an owner is not found or fails to redeem the livestock within 5 days, the sheriff will impound the animal. If the animal is not recovered from impound, the sheriff will sell the animal at public auction.
“Just because stray livestock are on one’s land does not mean the landowner can automatically claim them or remove them by other methods. Disposing of estrays outside of the procedure in Chapter 142 may be considered livestock theft.”
Open or closed range
Who is responsible for keeping cattle on or off your property? The authors indicate the answer to this question depends “whether this situation occurs in an open-range county or in one that has passed a stock law making it a closed range.
“In an open-range county, the landowner is responsible for keeping livestock off his or her land by building an adequate fence. According to the Texas Supreme Court, ‘[i]t follows that one who desires to secure his lands against the encroachments of livestock running at large, either upon the open range or in an adjoining field or pasture, must throw around it an [enclosure] sufficient to prevent the entry of all ordinary animals of the class intended to be excluded. If he does not, the owner of animals that may encroach upon it will not be held liable for any damage that may result from such encroachment.’
“In an open-range county, if a landowner has built an adequate fence and livestock still get onto his or her property, the landowner can recover crop or property damages from the animal’s owner. On the other hand, if a landowner fails to build an adequate fence in an open-range county, he or she has no recourse against a livestock owner when animals enter his or her property.”
In her blog at agrilife.org/texasaglaw, Lashmet writes, “Since 1876, the Texas Legislature has allowed for local stock laws to be passed that modify the common law rule of open range.
“Stock laws are considered by local voters and can apply to all or a portion of a county. If these laws are in place, the open-range common law is modified and landowners have a duty to prevent animals from entering the highway pursuant to the stock law.
“Many stock laws were enacted across Texas by the 1930s. The stock laws generally state that certain species of animals (i.e. horses, jacks, jennies, cattle, sheep, etc.) may not be permitted to run at large within the limits of the particular county. Essentially, a stock law changes the area from open range to closed range.
“Because each stock law is different, it is critical to determine the following information: (1) Does a stock law exist in the area; (2) What animals are covered by the law; and (3) Did the landowner ‘permit’ the animals to run at large.
“Unfortunately, there is no official compilation of stock laws in Texas. Instead, the laws are often contained in the minutes of county commissioners’ courts. Persons seeking to find out if their area is covered or seeking to obtain a copy of the laws may request information from their local county officials, as often county attorneys or county sheriffs may be able to provide this information.”
Sufficient fence
The Texas Agriculture Code establishes requirements for a sufficient fence. The authors explain, “however, these fencing standards apply only in open-range counties where fences are meant to keep livestock ‘out’ rather than ‘in.’
“These sufficient fence standards do not apply in a closed-range county, nor can they be used to determine negligence or liability in a roadway accident situation.
“In an open-range county, it is the landowner’s duty to build fences that keep animals permitted to roam at large off their property.
“The fence standard in the Ag Code determines if a landowner who built a fence to keep livestock off his or her property can recover property or crop damage from an animal’s owner if the animal got onto the landowner’s property.
The authors write, “Section 143.028 provides the following guidelines:
“(a) A person is not required to fence against animals that are not permitted to run at large. Except as otherwise provided by this section, a fence is sufficient for purposes of this chapter if it is sufficient to keep out ordinary livestock permitted to run at large.
“(b) In order to be sufficient, a fence must be at least four feet high and comply with the following requirements: 1. A barbed wire fence must consist of three wires on posts no more than 30 feet apart, with one or more stays between every two posts; 2. A picket fence must consist of pickets that are not more than six inches apart; 3. A board fence must consist of three boards not less than five inches wide and one inch thick; and 4. A rail fence must consist of four rails.”
During breeding season, don’t be surprised if a bull that doesn’t belong to you pays your cow herd a visit. The animal is doing what nature expects. If you do find an estray bull, call the sheriff and the vet.
The sheriff will help determine the rightful owner and the vet will provide the trich test to protect your peace of mind and your calf crop. Quarantine the bull until you know the results of the test, then return him to his owner.
Special Ranger Clark encourages landowners to take the time to know their neighbors, to discuss possible fence repair scenarios so they can be good neighbors to one another. As the authors write in their preface, “the law will never substitute for an understanding between two neighbors over a cup of coffee.”
“Wandering Bull” is excerpted from the October 2017 issue of The Cattleman magazine.