Fence law is complicated, but important to know

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Fence law can be complicated but is not a topic for landowners to avoid. A common-sense agreement can help livestock producers and their neighbors to have confidence they have a good working relationship.

Roger McEowen, professor of agricultural law and taxation, Washburn University School of Law, Topeka, Kansas, says that fence law is difficult at times because different states have their own case precedents, so it is one reason he tries to help educate farmers and ranchers and encourage them to get agreements in writing. He says states throughout the West have different provisions, which is why finding an attorney well versed in agricultural law is critical.

In a recent Kansas Fence Law seminar with a subtitle of “what rural landowners (and county commissioners) should know,” the need to better understand fence laws went far beyond the state’s borders.

Headaches are created when livestock get out and cause damage, but McEowen says precedence and law are the best path for property owners and neighbors to follow.

Kansas is a fence-in theory state, which means livestock owners must keep their animals fenced in, the law professor said. Other states employ a fence-out theory, which means the landowner establishes a fence to keep other people’s livestock off their property.

At the beginning of his presentation, he said in Kansas a partition fence is, by definition, a fence that is on the boundary between adjacent tracts. But confusion occurs when a partition fence is not on the actual property line. By usage over a long enough period of time the misplaced fence can become the boundary by usage.

Problems can flare up when someone wants to purchase 20 or 40 acres alongside an agricultural operation and “they think a survey is gold” but that is not necessarily so because usage of the fence for 15 years makes it possible for that fence to become the legal boundary. This can happen under one of two theories. One of those theories applies when the parties know the fence is not on the boundary and one party continues to use an area that is known to belong to the other party. If that true owner doesn’t object and stop the usage within 15 years in Kansas, the other party can obtain ownership. This concept came from England centuries ago where it was known as “squatter’s rights.”

“You are not subverting (the use),” he said. The concept in practicality means “I farmed up to a line and the other property owner did not stop it.”

McEowen said another theory can apply when neither adjacent owner knows the location of the true boundary. Title can be obtained by acquiescence. Usage for 15 years can lead to the boundary that is being used becoming the true boundary.

The ag law professor said to avoid adverse conditions he believes having a written agreement can save a lot of conflict many years later.

If livestock escape a fence that is in good repair, the owner is generally not liable for any resulting damages absent a showing of negligence, McEowen said. Negligence is generally defined as gates being left open, a fence improperly constructed or maintained, knowledge that animals are in heat and the fence is incapable of holding them or knowledge that animals are out and the owner is not attempting to retrieve them.

The owner whose property was damaged by the trespassing animals has several ways to pursue relief. He can retain the animals until payment is made for damages plus reasonable costs, and the owner of the livestock needs to be notified with 24 hours. Once notice is given, he can only hold for five days without bringing legal action against the owner. Alternatively, the county sheriff can take the animals into custody and give notice.

If it is not known who owns the cattle, the sheriff is to be notified within 24 hours. The party caring for the livestock in the interim can be compensated for feed and care costs by filing a lien.

If the livestock owner owns land adjacent to a crop farmer who has no interest in sharing equally in the cost of building and maintaining a fence, that can create other challenges when the livestock get out, McEowen said. There may be limitations on the amount (if any) damages the crop farmer could receive.

If the non-livestock owner does not want his land enclosed, he cannot be forced to build or pay for an equal share of the partition fence if the adjoining tracts are used for the same purpose, such as crops. The statute only applies to relieve a landowner from the responsibility for sharing equally the cost of building and maintaining partition fences when the land is used in common (i.e., crop farming on both sides of the fence) and the complaining party does not want the fence.

If the parties cannot agree McEowen tells them to negotiate a fence agreement and have it recorded. Always try to settle disagreements privately. If no agreement can be reached, the dispute can be taken to the county commission or any two of them acting as fence viewers.

McEowen also notes that disputes can occur along county borders and that means representatives from each county form a fence viewing board and render a decision based on majority vote. That action will be recorded in the register of deeds offices in each county.

In Kansas there are several trigger points on how binding the decision is, he said, because the commissioners may act as a board collectively or any two of them may be appointed. The fence viewers only have jurisdiction over building and maintenance disputes, and they cannot order an existing fence to be moved. After a view, they will assign to each party, in writing, an equal share or part of the fence to build, maintain or repair.

If acting as “fence viewers,” a commission’s decision is final, conclusive, non-appealable and binding on parties and all succeeding occupants of the land. If the commissioners do not appoint “any two of the viewers” any decision is deemed to be a board decision and that triggers normal appeal rules that include notice must be filed within 30 days and appealing party must provide a bond and pay necessary costs.

McEowen said there is a provision for a penalty phase if one of the parties does not abide by the fence viewers’ decision and the costs can be significant. Kansas law allows for in the imposition of interest of up to 1% a month (12% in a year’s time) and any attorney fees.

McEowen went through several high-profile cases and how they worked through the appeal process. A legal fence in a county can be constructed in several ways, most notable is barbed wire with at least three wires, but there are exceptions based on statute that could include a rock, brook, river, creek ditch or other similar structure and a county commission can enact more stringent legal fencing requirements on a countywide basis.

McEowen said cattle can be moved on many public road-ways, but the rancher has to keep tight control on them and if damages occur he will be strictly liable for them.

For landowners who have land adjacent to a railroad, it is the responsibility of the railroad to build and maintain those fences, he said. Typically, the railroad company does not want to be in the fencing building business and as a result it will often allow the adjacent owner to build the fence and the landowner will need to submit a bill for payment.

For highway fences, such as at the side of an interstate or major highway, generally the farmer is responsible for the inner fence and the state department of transportation is responsible for maintaining the outer fence, which is the one closer to the roadway, he said. In the case of Kansas, the state’s department of transportation has a common law duty to keep the highways in a reasonably safe condition.

The land between fences, he said, can be a festering point because of weed pressure.

A county commission can also permit a gate and fence to be placed across certain public roads so the general public can continue to access roads.

As reported in the High Plains Journal.

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