Fence Law Basics

Overview

Robert Frost once said that, “Good Fences make good neighbors.”  To paraphrase G.K. Chesterton, “Whenever you remove any fence, pause long enough to consider why it was put up there in the first place.”  Both quotes are sound advice.  Of all the areas of agricultural law that I field questions concerning, outside of farm income tax and farm estate and business planning, perhaps questions concerning fences (and leases) are the most abundant.    

Most states have numerous laws concerning partition fences. Those laws involve such issues as the construction of fences; what is deemed to be a “legal” fence; liability for damages caused by livestock that escape their enclosure; the maintenance of partition fences; the role of the county officials serving as fence viewers in settling fence disputes; and rules for handling stray animals.

Fences and the legal issues for farmers, ranchers and rural landowners – it’s the topic of today’s post.

Partition Fences and Location Issues

State law commonly specifies that a partition fence is to be placed on the line between tracts of land owned by different persons, but also does allow for a partition fence to be located entirely on side of the boundary.  See, e.g., Kan. Stat. Ann. §§29-316; 317. 2 Kan. Stat. Ann. §60-503.  Having a fence located on one side of the actual property boundary may not raise an issue concerning ownership of the land that is fenced, but if such a fence has been in place for long-enough time and the adjacent landowners have, over time, come to believe that the fence marks the boundary then the fence may become the actual boundary regardless of what a deed or survey says. So, in an agricultural setting, usage of property may determine property boundaries more often than do surveys. On this point, there are two different, but related theories that may apply to determine the amount of land owned by the adjacent landowners.

Adverse possession. Under the adverse possession theory, a landowner may acquire title to property by making an open and notorious use of the property for a statutorily-prescribed timeframe that varies among the states from two to 21 years.    In general, this theory can be utilized if the adjacent parties know that the fence between their properties is not on the boundary but do know where the actual boundary is located (thus, the possession is knowingly adverse) and one party is benefited by the misplaced fence, but the other party doesn’t take any action to remedy the problem within the statutory timeframe.

Doctrine of practical location.  The doctrine of practical location can be used in situations where the parties know that the fence is not on the boundary, but don’t know where the actual boundary is located. Thus, one party has a good faith belief of ownership. Similarly, after the statutorily-prescribed timeframe of usage of a fence as the boundary, the fence can become the actual boundary between the tracts.

Building and Maintenance Issues

In general, the owners of adjoining lands are required to build and maintain in good repair all partition fences in equal shares, unless the parties agree otherwise.  The duty to maintain a partition fence confers on the landowner the privilege to lawfully enter onto the adjoining landowner’s property at reasonable times and in a reasonable manner to maintain the fence.  In practice, many adjoining landowners adopt the “right-hand” or “left-hand” rule — they face each other at the mid-point of their fence and agree to build and/or maintain the portion of the fence to either their respective right or left. Of course, adjacent landowners can execute a written fence agreement specifying the part of the fence that each party is responsible for building or maintaining. Such an agreement can be recorded and thereby become part of the land records that will bind subsequent owners of the properties.

Fence-in or fence-out?  States that are not in the western part of the United States follow the “fence-in” rule.  That means that livestock owners are required to fence their animals in.  But, as stated above, state law in these states also requires that the owners of adjoining lands build and maintain in good repair all partition fences in equal shares.  That sometimes creates problems when a livestock owner shares a partition fence with a crop farmer or other landowner who does not graze livestock and, hence, has no need for a fence. But, if an adjacent non-livestock owner does not participate in the maintenance of their share of the partition fence, and injury results to them because of the defective fence that they were required to maintain, they cannot recover for damages caused by the adjacent landowner’s stock.  Also, a non-livestock owner will be held liable to others who are damaged by the neighbor’s livestock escaping through the defective partition fence that the non-livestock owner is required to maintain.  However, there can be special rules in a particular state that might also apply in this situation.  See, e.g., Kan. Stat. Ann. §29-309. 

Procedure for Handling Fence Disputes

In some instances, adjoining landowners may come to an agreement as to how to allocate the responsibility between themselves for the building and/or maintenance of a partition fence. If an agreement is reached, it may be wise to put the agreement in writing and record it in the county Register of Deeds office in the county where the fence is located. However, if the adjoining landowners cannot reach an agreement concerning fence building and/or maintenance, most states require that the fence be called.  The fence viewers are some governmental body of elected officials (who sometimes don’t know that they have a statutory obligation to view partition fences). 

Under Kansas law, for example, the county commissioners (or their designees) in the county where the fence in question is located are the fence viewers.  Kan.Stat. Ann. § 29-201.  For partition fences that are on the boundary between counties, state law should specify the procedure to be followed to determine who is responsible for viewing the fence.  Detailed rules often apply in determining how the view is to be conducted, whether a majority vote is required for determinations, and the appeal procedure if a landowner objects to the conclusions of the viewers.  Ultimately, state law (or caselaw) will provide a mechanism to get a partition fence repaired and the proper party compensated for any work done.

What Is a Legal Fence?

State law specifies what a legal fence is in that particular state.  Sometimes, a statewide requirement applies.  In other jurisdictions, an individual county can set the legal fence requirements.  Generally, the fence viewers can require the parties to build only what is a legal fence in the county. They cannot require a higher-quality fence.   In many states, a legal fence is a barbed wire fence that meets certain specifications, but a legal fence may also be of another type such as posts and rails; post and palings; posts and planks; palisades; stone; post and wires; turf; and electric wire.  State (and/or local) law can be rather detailed on the requirements for a legal fence. 

Escaped Animals – Liability

In general.  In fence-in jurisdictions, if livestock escape through an owner’s faulty fence, the owner is liable for any resulting damages.  However, if the fence is in good shape, the livestock owner is generally not liable absent a showing of negligence.  Evidence of negligence includes such things as gates having been left open, the fence being improperly constructed or maintained, knowledge that the animals were in heat requiring a stronger enclosure or a closer watch, or knowledge that the animals were outside their enclosure and the owner made no attempt to return them. 

The same rules apply when livestock wander onto a public roadway and cause injury to a motorist. In most fence-in jurisdictions, the animal’s owner must be shown to have been negligent.  However, some fence-in jurisdictions apply the doctrine of res ipsa loquitor in livestock/automobile collision cases. The doctrine is a procedural technique that can be used to shift the burden of proof to the livestock owner. In other words, if the doctrine were applied and its elements satisfied, the animal owner would have to prove that owner was not negligent for failing to keep the animal enclosed.

Distraint. If a neighbor’s animals trespass onto an adjoining property owner’s land and the adjoining property owner’s land is lawfully fenced, the adjoining owner may have a right to distrain the animals.  State law often allows a landowner that has been damaged by trespassing livestock to retain the trespassing animals until payment has been made for the damages and the reasonable cost of distraint.  The livestock owner must be notified within a certain timeframe of distraint being utilized.  If the owner can’t be found, a common requirement is that the local sheriff is to be notified.  Once notice is given, the animals can only be held for a few days without bringing legal action against the livestock owner to recover the damages incurred.  As an alternative, many states will allow for the sheriff to be summoned to retrieve the livestock, hold them in custody and dispose of them in accordance with state law procedures.  

What About Railroad Fences?

Typically, landowners do not have any responsibility to build or maintain railroad fences. Instead, railroads are responsible for damages caused to animals that are hit by a train regardless of whether they were negligent or not.  Livestock owners do not have to establish that the railroad was negligent.  However, the liability of a railroad can be waived by the adjacent owner by contract.  But, railroads can avoid liability if they enclose their tracks with a lawful fence. Adjacent landowners can require the railroad to enclose its right-of-way with either a lawful fence or a hog-tight fence, but cannot require the railroad to maintain an electric fence.  If the railroad fails to fence-off its right-of-way, state law often provides a procedure for landowners to follow in getting such a fence built.  Issues can also arise, however, when railroads abandon lines.

Public Roads Through Private Pastures

In states from the Great Plains to points further west, it is possible that a public road may exist through a privately-owned pasture by authorization of the public officials.  In other words, a gate and fence could be authorized to be placed over and across certain public roads, but it couldn’t be authorized to be locked to prohibit general public access to the road.  In these situations, the road can be either auto-gated or cattle-guarded. If a gate is used and is left open, criminal penalties can apply. 

Responsibility for Highway Fences

In some states, it is conventional to expect landowners to build highway fences. Other states have resolved the issue by placing a common law duty on the state highway commission or department of transportation the non-delegable responsibility to keep the highways in a reasonably safe condition.

Conclusion

Fences can create numerous legal issues for farmers, ranchers and rural landowners.  Unfortunately, some of those issues can escalate such that a lawyer trained in agricultural fence law issues becomes necessary.