266 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



State relies almost entirely upon his recorded brand and upon 

 the annual round-up for identification thereof and protection 

 from loss; except in a few isolated instances, such stock is 

 never, except in summer or winter, confined to an enclosed 

 area or kept close-herded upon the range. And the conclu- 

 sion arrived at in the opinion above mentioned [i. e., Morris 

 V. Fraker, cited supra] is based largely upon the general cus- 

 tom that has always prevailed among stockmen in this coun- 

 try of allowing their cattle to roam at will upon the public 

 domain. But persons who make sheep raising and wool 

 growing their business always pasture in enclosures or close- 

 herd upon the range. The difference in intelligence and in- 

 stinct, in disposition and physical characteristics, between 

 sheep and cattle, renders it absolutely necessary to handle 

 them differently. A flock of sheep turned loose to run at 

 will upon the range would soon be entirely lost to the owner. 

 True there is no law except that of self-interest to prevent the 

 owners allowing them to run at large. But the custom of 

 close-herding sheep is as fully established and as universally 

 recognized as is that of allowing cattle to range at will. . . . 

 The farmer in Colorado, aware of the established custom of 

 letting cattle run at will, in the absence of statute, builds a 

 fence sufficient to protect his crop therefrom; but being ad- 

 vised of the equally well-established custom of enclosing or 

 close-herding sheep, he does not so construct his fence as to 

 keep them out of his field. It would be manifestly unjust to 

 apply the same rule for injuries to his crop by the latter that 

 would be applicable for like injuries under similar circum- 

 stances by the former." *^ 



In Connecticut the common-law rule is not in force,*® ex- 

 cept as to fencing in unruly cattle.*'^ And it was held not to 

 apply to the Black Hills country of Dakota as "not in accord- 

 ance with the common usage and necessities of the new and 



" Willard v. Mathesus, 7 Colo. 76. 



" Studwell V. Ritch, 14 Conn. 292; Hine v. Munson, 32 id. 219. 



*'' Hine v. Wooding, 37 Conn. 123. 



