What does the law say when your neighbor won’t help with fencing?

The old adage, “Good fences make good neighbors,” has stood the test of time. A good boundary fence, also called a partition fence, has many benefits, especially marking the property line, as people generally stay on their side.

I coined the phrase, “Bad (or no) fences make even worse neighbors,” because when a boundary fence falls into disrepair, is removed, or simply rusts away, the boundary line becomes unclear and leads to misunderstandings, which generally leads to lawsuits. Simply, people are more apt to enter onto your farm when a fence is not present, farm over the property line, and just about everything else in between. Based on personal experience with a fence that I had constructed last year, fencing is costly. However, knowing the fence law in your state can help spread the cost out, because in most instances the benefits too are spread out.

Many states require that landowners on each side of the fence contribute to a boundary fence. This harkens back to the days of the settling of this country where it was presumed that both owners would benefit from the same fence, because practically everyone had livestock, so each should share the cost. Today, even if one landowner does not have livestock, many states hold that the owner without livestock still benefits by having a fence. Mainly because the fence clearly marks the boundary line. However, the fence could dissuade trespassers from coming across both owners’ property, keep in pets, children, and provide other benefits as well to the adjoining landowner.

So, how does a farmer who wants or needs a partition fence built, rebuilt, or repaired, avoid having to shoulder the entire cost of such, especially when the adjoining neighbor benefits? Riding to the rescue is a bevy of fence laws across the country that require the adjoining neighbor to build some portion of the fence in various instances. The National Agricultural Law Center reports that all 50 states have enacted statutes that address issues of farm fences that act as partition fences and the responsibility of adjoining landowners. These “fence law” statutes vary widely from state to state. The National Ag Law Center has information on fence laws in each state.

In Indiana, for example, the law requires adjacent landowners to share in the cost of building and/or maintaining a partition fence via the “right hand rule.” This rule, in days of old, held that you stand in the middle of the fence looking across at your neighbor, and you must build, maintain, or repair the entirety of the fence exists to the right of you. The adjoining owner does the same to his/her right. So, if there is 100 feet of fence, you are responsible for 50 feet, and so is your neighbor. As long as one parcel is used for farming or conservation, the law applies. Livestock on either side is not a requirement. If the neighbor refuses to build their half, then once you build your right-hand section, and the neighbor refuses to build or pay for their half, you are to ask the township trustee to mandate the neighbor build their portion. If they still refuses, the trustee can have the section built and the bill goes on the adjoining neighbor’s tax bill.

In Michigan, the adjoining neighbor only has to pay if they begin “restraining or containing animals” and then a “fence viewer”, which can be a township trustee, or someone hired by the township trustee, can determine if the neighbor is using a fence constructed or maintained by an adjoining property owner, and if so, what percentage of the cost of construction and maintenance of the fence the neighbor is responsible for.

Ohio has a lengthy partition fence law with each county having a “partition fence record” where fence agreements between neighbors can be filed. Whether or not the adjoining neighbor has to help with the cost or maintenance of the fence will depend on if there was an agreement prior, if there was a partition fence prior, or if the neighbor starts making use of the fence. Illinois’s fence law holds that when two or more persons have lands adjoining, each of them shall make and maintain a “just proportion” of the division fence between them. Disputes are also handled under the “fence viewer” procedure, but each party gets to select a fence viewer and if these two individuals cannot agree, then they select another fence viewer to weigh in.

The takeaway from all this is that when it comes to partition fences, there is a common theme that runs across most of the states and that is boundary fences are important, most times both property owners benefit, and thus there should be a shared cost in all, or at least some circumstances. For those who build or reconstruct a fence and believe the adjoining neighbor should help in the cost, it is important to follow the statute to a “T”.

Years ago, a person in Indiana built the left-hand side of the partition fence, because there was much more work to do on that section (versus his right-hand side) due to having to remove rocks and trees. So, he built the left-hand section to make it easier on the adjoining landowner to build the other half. When the adjoining landowner refused, it was determined the individual’s actions, while commendable, did not follow the statute requiring him to build the right half, and thus the adjoining landowner was relieved of the obligation to build the other half.

Talking to your neighbor about the benefits of a good boundary fence is (most times) the best place to start. My experience has been that non-farm neighbors share a disbelief that the law requires them to help build the fence. So do farmers that don’t have livestock. Education goes a long way. So does compromise. If and when you feel you have to invoke the fence law in your state, again, you should know the procedure exactly and seeking out legal counsel before doing anything is wise.

For those that may be disgruntled when they are on the side of the statute requiring them to build part of the fence upon request of their neighbor, take solace in a few things. First, good fences do make good neighbors. Second, just because you don’t have a use for the fence now, you may later. Lastly, there have been cases where Fred has livestock, John is the adjoining neighbor without livestock, and Fred’s livestock got out through the part of the fence in which John had responsibility to maintain. John was found liable for the livestock causing an accident, even though they were Fred’s, because John had a statutory duty to maintain his section of the fence. Thus, doing your part under the statute could save you from unforeseen liability.

In closing, in many, if not most instances, partition fences are just as important as they were 100 years ago. But, unlike 100 years ago, your neighbor may not know a corn row from a fence row, let alone the concept behind fence sharing and therefore balk at participating. Knowing your state’s fence laws will, hopefully, allow for a shared cost for a good fence that will make even better neighbors.

These articles are for general information purposes only and should not be construed as specific legal advice or to create an attorney-client relationship. Laws vary among states and information contained in this article may not be applicable to your state. If you have a legal issue, you should contact an attorney. John J. Schwarz, II, is a lifelong farmer and has been an agricultural law attorney for 18 years. Find him at www.thefarmlawyer.com.