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Open Range v. Enclosure

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In the southern States, open-range herding prevailed from the early seventeenth to the twentieth century. This was due partly to the high ratio of empty land to people and partly to the fact that the south was settled by immigrants from upland northern and western England and the Celtic portions of the British Isles where open-range herding was practiced.

The Virginia fencing act of 1632 provided that "every man shall enclose his ground with sufficient fences or else to plant, upon theire owne perill." Fencing of any land except arable acreage actually under cultivation was prohibited by law in all southern colonies, and even non-landholding cattle and hog raisers could freely graze their animals upon the land of others. North Carolina attempted in acts of 1715, 1729 and 1775 to restrict and regulate common grazing rights, but the laws were found to be unenforceable. As late as 1830, Virginia planters were still attempting to get legislation passed to allow them to fence entire estates, or even private pasturage.[From: Forrest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the Constitution, University Press of Kansas, c1985, pp.21-2; citing Gray Southern Agriculture, 1:138-151, 2:843; Forrest McDonald and Grady McWhiney, "The Antebellum Southern Herdsman: A Reinterpretation," Journal of Southern History 41 (1975): 147-166, and "The South from Self-Sufficiency to Peonage: An Interpretation," American Historical Review 85 (1980): 1105-111; and J. Crawford King, "The Closing of the Southern Range: An Exploratory Study," Journal of Southern History 48 (1982): 53-70. See also Terry G. Jordan, Trails to Texas (Lincoln Nebr., 1981) 1-58.]

Enclosure was a recognized attribute of adverse possession and occupancy. In 1885, is response to the threat of preemptive property claims, Congress passed "An Act to Prevent Unlawful Occupation of the Public Lands" (23 Stat. 321), forcing removal of fences on the public domain. President Cleveland implemented with an order "that any and every unlawful enclosure of the public immediately removed."


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