§ 35-46-102 — Owner may recover for trespass

(1) Any person maintaining in
good repair a lawful fence, as described in section 35-46-101, may recover damages
for trespass and injury to grass, garden or vegetable products, or other crops of
such person from the owner of any livestock which break through such fence. No
person shall recover damages for such a trespass or injury unless at the time
thereof such grass, garden or vegetable products, or crops were protected by such
a lawful fence. Even though such land, grass, garden or vegetable products, or
other crops were not at such time protected on all sides by a lawful fence, if it is
proved by clear and convincing evidence that livestock have broken through a
lawful fence on one side of such land to reach such land, grass, products, or crops,
recovery and the remedies under this section may be had the same as if such land,
grass, products, or crops had been at such time protected on all sides by a lawful
fence.

(2) Whenever a person stocks land, not enclosed by a lawful fence, on which
the person has a lawful right to pasture or forage livestock, with a greater number
of livestock than the land can properly support or water and any of the livestock
pasture, forage, or water on the lands of another person, in order to obtain the
proper amount of pasture, forage, or water or whenever a person stocks with
livestock land on which the person has no lawful right to pasture or forage livestock
and the livestock pasture, forage, or water on such land or on other land on which
the person has no right to pasture or forage livestock, the person shall be deemed a
trespasser and shall be liable in damages and subject to injunction.

(3) All damages sustained on account of the foregoing trespasses may be
recovered, together with costs of court and arbitration, and the livestock so
trespassing may be taken up by the person damaged and held as security for the
payment of such damages and costs. A court of competent jurisdiction in any
proper case may issue an injunction to prevent further trespasses. In any action for
trespass where the injury complained of has been aggravated and attended by a
willful or reckless disregard of the injured person's rights, the board of arbitration,
court, or jury may in addition to awarding actual damages include reasonable
exemplary damages. Recovery may be had under this section either in a court of
law or by arbitration as provided in section 35-46-103.

Legislative History

Source: L. 1885: p. 221, � 3. R.S. 08: � 2589. L. 17: p. 343, � 3. C.L. � 3155. CSA: C. 160, � 58. L. 53: p. 587, � 3. CRS 53: � 8-13-2. C.R.S. 1963: � 8-13-2. L. 2025: (2) amended, (HB 25-1084), ch. 24, p. 131, � 128, effective August 6.