When does a fence become the legal boundary line for farmland?

Rarely does a farmer or landlord agree or consent to lose part of their land. However, that is exactly what can happen in cases where a fence between neighbors turns out to not be on the legal boundary line.

The expectation is that a fence between neighbors is erected on the legal boundary line between the two adjacent properties. However, sometimes landowners have a mistaken belief that the fence marks the legal boundary line between two properties when it actually does not. Other times the adjacent landowners agree to treat an existing fence not on the legally boundary line as the legal boundary line. No matter the various circumstances, a fence that is believed to mark the legal boundary line, and turns out to not be the case, usually leads to a dispute at some point.

How does the law generally treat these instances where a boundary fence is not on the legal boundary line? Enter the Doctrine of Title by Acquiescence, which determines the legal boundary line between two properties and overrules the boundary listed in the deeds.

If the law of acquiescence applies, one property owner loses title to some amount of land and the other property owner gains it. Being acquiescent means to accept, agree, or consent. So, the Doctrine applies to situations where parties accept or agree that a fence not on the legal boundary line serves as the legal boundary line. This is much different than the Doctrine of Adverse Possession, where land can be gained or lost without any agreement or consent.

There are many instances where fences are built where it is most convenient and not on the exact boundary line. For example, when there are trees, rocks, or other obstacles in the way.

With the advent of GPS, it is easy to determine the boundary line down to mere inches. Today, it is more common to see a modern survey determine that the old fence is several feet, sometimes several yards, off of the surveyed boundary line. Now what?

The neighbor who has lost ground due to the fence not being on the boundary line wants their lost land back. In most cases, the neighbor who gained ground is not keen on losing ground, especially if they have been farming up to the fence. In some cases, the prior adjoining neighbors, decades or a century ago, actually agreed that the fence, which was not on the legal boundary line, was the legal boundary line.

Variation by state

In these instances, the Doctrine of Title by Acquiescence serves to settle ownership. The requirements of the Doctrine vary from state to state.

In Indiana, there generally needs to have been some agreement of the adjacent landowners during the history of ownership. The Indiana Court of Appeals, in Freiburger v. Fry (1982), stated that a fence line agreement is not only binding on those parties who originally agree, but also on future owners, so long as there was no fraud present in the making of the agreement. In 2007, the Doctrine was again revisited by the Indiana Court of Appeals and the criteria established that where there are two adjoining property owners that (1) share a good-faith belief concerning the location of the common boundary line that separates their properties and, (2) although the agreed-upon location is not in fact the actual boundary, (3) use their properties as if that boundary was the actual boundary (4) for a period of at least twenty years, such becomes the official boundary line.

Ohio has similar case law, with one case noting that the Doctrine "rests on the practical reality that oftentimes, the true boundary line location is uncertain, and neighbors may themselves establish boundaries." It is worth noting that in some states an "agreement" among adjoining owners has been found in instances where each side farmed up to or grazed up to the fence. Thus, treating the fence as the boundary lines arises to an agreement.

Although it has been said by the Indiana Court of Appeals that the Doctrine has "lain largely dormant in real estate litigation since the end of the nineteenth century," it may very well be back in style as more land changes hands and more non-farmers locate to rural areas. With the ever increasing price of land, a boundary line being a few feet in one direction can add up quickly.

Know your legal boundary line

The takeaway is that most states will have some form of the Doctrine of Title by Acquiescence. Although the requirements may differ, the general theme is the same: Not knowing the exact boundary line of your land could cause you to lose part of your land.

You and your neighbor may have gotten along fine for years, if not decades, treating the old fence as the boundary line, but not intending for it to establish the legal boundary line. All bets are off when the new neighbor moves in. A modern boundary line survey is good insurance against being caught on the short end of the Doctrine. It's also a good idea to have a written agreement between neighbors, stating the use of the current fence as the boundary line is for convenience only and not necessarily intended to become the legal boundary line.

This article is for general informational purposes only and does not constitute 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 specific legal issue, you should contact an attorney.

John J. Schwarz, II, has been farming for as long as he could reach the clutch pedal on his dad's 4020 and has been an agricultural law attorney for 18 years. He can be reached at 574-643-9999, john@schwarzlawoffice.com, or visit him at thefarmlawyer.com.