Management Tips

They do apply to boundary fences and certainly those which serve as a partition between properties of neighboring landowners. And it’s Livestock Fence over these fences that neighbors sometimes argue.

Fence disputes “In my opinion, based upon 35 and the Law years of Extension work and by Troy Smith fielding fencing questions,” says Matthews, “the most common fence disputes are over fence boundaries, maintenance of existing fence and the replacement of an old fence.” According to Matthews, disputes over placement of an existing fence may arise when a piece of real estate changes hands and a land survey is performed to determine actual boundaries for the property. A survey may reveal that an existing “boundary” fence really doesn’t stand on the property line, but some distance to one side or the other. If the buyer of the property feels he is giving up too much of his newly acquired land to a neighbor, he may want the fence moved to align with the surveyed boundary. That might be agreeable to the neighbor, or it may not. If that neighbor has actually been using the land gained because of fence placement for a long enough period of time, he may be able to claim it through the doctrine of adverse possession, which is observed in all 50 states. “It basically means,” states Matthews, “an existing fence (that the previous landowner and the neighbor) regarded as being on the o your livestock “While states often first or other distances, sometimes lawful boundary for a statutorily fences meet the law’s defined ‘open range’ by statute, in depending on whether stays or prescribed minimum of time, that Drequirements? Some doing so, they necessarily defined pickets are used between posts. such fence will re-establish the livestock owners may be unaware how a crop farmer could lawfully Different livestock species often lawful boundary line.” that state laws prescribe when a erect a ‘lawful fence’ and thus are addressed, with different States vary in the time required fence is required, what kind of be allowed to collect damages or requirements for hog- or sheep- before someone can assert a claim fence it should be and who has apply other remedies (to impound tight fence than for cattle, horses of adverse possession. It may be responsibility for building and or kill trespassing livestock) if he and mules. as few as two years or as many as maintaining it. Familiarity and first protected his land with a Some state fence laws are 60 years. compliance with requirements lawful fence,” adds Matthews. more subjective. In some New for a lawful or legal fence could The definition of a lawful England states, for example, the Neighbors and fences help livestock owners avoid fence varies considerably among law reads as follows: “All fences Neighboring landowners disputes with neighboring states and may include specific four feet high and in good repair, sometimes disagree over who has landowners and might also descriptions of acceptable fences consisting rails, timber, stone responsibility for building and help minimize liability issues. constructed of rails, boards and walls, iron or wire, and brooks, maintaining fences. The answer, While many states have stone and fences incorporating rivers, ponds, creeks, ditches found in their state’s fence law, relatively few state statutes natural barriers such as cliff walls and hedges, or other things depends on whether it is a “fence- pertaining to agricultural issues, or bluffs. Even the requirements which in the judgment of the in” or “fence-out” jurisdiction. every state has a fence law statute, for a lawful barbed wire fence are fence viewers having jurisdiction “Most states are fence-in says University of Missouri variable from state to state. thereof are equivalent thereto, jurisdictions now,” says Roger Emeritus Professor Steven are legal and sufficient fences.” McEowen, Director of the Matthews, director of the Missouri State laws In states requiring the services Center for Agricultural Law and Agricultural Law Center. In some states, a legal barbed of “fence viewers,” the duty may Taxation, Iowa State University. “The original American wire fence must be at least 36 go to local elected officials or, “That means livestock owners are colonies adopted the English inches high, while others call for by appointment, to fence-savvy responsible for fencing in their Common Law,” explains Matthews. minimum heights of 48 or 52 persons. It’s their job to determine livestock. In fence-out or open- Common Law, or case-made law, inches. The minimum number of if new fences are legal and to range jurisdictions, crop farmers puts the burden of responsibility strands of barbed wire required arbitrate fence-related disputes. and other landowners must use on livestock owners to keep their can vary from three to as many In every state, however, plenty fences to keep livestock out. animals from trespassing on a as eight. Some state codes require of fences on livestock operations “In application it’s not quite neighbor’s property. However, spacing between the wires to fall short of specifications set that simple. Statutes often require some states departed from meet specific measurements. down in law. For certain fences, neighbors to share responsibility Common Law, requiring crop Requirements may call for fence that’s OK. The laws do not for maintaining boundary fences, farmers to fence their fields to posts to be placed at intervals pertain to fences that subdivide a even if one of them doesn’t have keep free-ranging cattle out. of 20 feet, one rod (16.5 feet) landowner’s pastures and fields. livestock,” adds McEowen. “That

52 / October 2011 www.hereford.org surprises a lot of people, but it’s fence was flattened by the impact or horses that wandered onto a that way in most of the major of the horses breaking through,” highway and were hit by a vehicle, In an increasingly litigious society, livestock-producing states.” explains Matthews. Kingsbery has been called upon to In such instances, landowners “The jury apparently inferred review the livestock owner’s fence the construction and maintenance might be required to equally that the animals got out through and management practices and of good fences represents an share the cost of maintaining no fault of the rancher, even present testimony. a boundary fence. Or, the law though there was no evidence that He emphasizes that reputation investment in risk management. may state that each landowner is dogs had chased them or that a matters. An injured party usually responsible for maintaining half storm had spooked them. The must prove the livestock owner of the fence — specifically that rancher’s attorney also offered was negligent. That’s harder to “It depends on your purpose,” half which lies to his right when evidence that this rancher had a do when he has a reputation for explains Kingsbery. “In Texas a he stands on his side of the fence reputation for always maintaining good management, maintaining four-wire fence, 48 inches high, at the midway point and facing good fences and that his livestock good fences and responding is a legal fence. But it’s not the the fence. were not known to have escaped quickly if livestock do escape. In best fence for holding a set of Typically, each party is onto the highway before. The jury some states, a livestock owner may bawling, just-weaned calves, when responsible for the cost of the held there were no liability and no be required to prove that he was their mamas are in another field prescribed share of a legal recovery for the motorist.” not negligent when his livestock directly across the road. Neither fence, as defined by law. “You Matthews’ example brings escaped, so a history of good is that kind of fence going to keep only have to pay for your share up the point that, in spite of stewardship is invaluable. a bull separated from a set of of a fence meeting minimum a good lawful fence, livestock “Increasingly, accidents cycling heifers. You need a fence requirements, even if your may escape due to an “Act of involving automobiles and that’s adequate for the purpose. neighbor wants a fence to make God.” Events which a jury may livestock result in the livestock Kingsbery, Matthews and an enclosure as secure as Fort consider plausible acts of God owner getting sued. That can McEowen agree there is wisdom Knox,” says McEowen. could include a storm-felled tree happen whether he maintains in that old saying, “Good fences A state might have it both which takes down a fence or dogs legal fences or not,” says make good neighbors.” Meeting ways, with fence-in or fence-out chasing livestock through a fence. Kingsbery. “If he does end up in requirements for a lawful fence is status determined at the county However, according to Matthews, court, I can almost guarantee that the least a livestock owner should level. And while state statutes jury consideration of such events he will be asked to explain his do. In certain situations, however, may determine minimum is not meant to excuse negligence fence maintenance program. And fences that meet the letter of the requirements for a legal fence, by livestock owners. A lawful fence they will find out what kind of law might not be good enough. additional local codes may also is still required. reputation he really has.” In an increasingly litigious society, apply. The ever more popular Bob Kingsbery, Frisco, Texas, Kingsbery reminds livestock the construction and maintenance electric fence is a good example. is a livestock management and owners that a fence built of good fences represents an A single electrically charged fencing consultant who also according to the state’s definition investment in risk management. wire might qualify as a legal provides “expert opinion” for court of a “legal fence” doesn’t And because no fence is fence, according to some state cases involving livestock related automatically make it the best foolproof, liability insurance can statutes but not meet county incidents. In cases involving cattle fence for every situation. be a wise investment too. HW requirements. McEowen advises livestock producers to be aware of their respective state and local laws. Who is liable, landowner or tenant? Suppose you are the owner of some grazing land. It could be for stewardship of the livestock. Thomas says the outcomes of The consequences native range, improved pasture or wheat pasture. It might be a such lawsuits usually depend on the particulars of the state’s What if a livestock owner’s field with crop residue suitable for grazing. You own land with fence law and whether that jurisdiction observes “comparative” boundary fences don’t meet available forage but possess no livestock. So you rent the land to or “contributory” negligence tort law liability. requirements for a lawful fence? another party who stocks it with cattle. “In a comparative liability state, a jury usually assigns each What if his cattle escape and Then, one dark night, the ringing telephone brings you out party a percentage of responsibility,” explains Thomas. “In a cause damage to the neighbor’s of bed. It seems your tenant’s cattle have breached the fence contributory liability state, one party — either the landlord or the crops? Worse yet, what if the cattle mix it up with highway surrounding your property and wandered onto the adjacent tenant — probably gets socked for the whole thing.” traffic, resulting in a motorist’s highway. Actually, the fence wasn’t too great, but there hadn’t Other factors can muddy the water in situations like the one injury or death? If an injured been any problems until this night. But now, at least one escaped described, making it even more important for landowners and party brings a lawsuit against the critter has been party to a fender bender. No one was injured but tenants to protect themselves. livestock owner, does the kind of the owner of a banged-up automobile is mad and threatening to “It’s incumbent upon a landlord to make clear who is fence really matter? sue somebody for damages. responsible for fences on the property in a lease with a tenant,” “It matters. Technically, a Who should be worried about potential liability for damage to states Arthur, who recommends putting terms of the agreement legal fence is required,” states the motorist’s car? Is it you, as owner of the land, or your tenant, in writing. McEowen. “With anything less, who actually owns the cattle? According to Terry Arthur, attorney “A lease agreement can be an overriding factor if it clearly you’re more at the mercy of a for Kansas Farm Bureau, it’s hard to provide a pat answer since assigns duties and responsibilities, including responsibility for complaining party.” state and local laws can vary so much. However, both parties may maintaining fence and preventing cattle escape and trespass,” Steven Matthews agrees that maintaining legal fences is a have cause for concern. adds Thomas. “It doesn’t guarantee total immunity, but it sure good defense. A good example “Generally, a landlord is responsible for maintaining a legal helps.” HW comes from an actual Illinois fence,” says Arthur, noting that most state fence law language case Matthews often used in says “landowners” must maintain legal fences when and where his undergraduate Ag Law they are required. And responsibility for escaped cattle would classes. In this particular case, rest with the landowner if he provided custom grazing services a rancher’s horses had escaped including care of the cattle on his property. onto a highway. A motorist “But a tenant, as owner and manager of the livestock, is whose vehicle struck one of the responsible for escaped cattle. It’s possible, however, that the animals sued the rancher, citing complaint could come against both landlord and tenant,” negligence in failing to maintain Arthur adds. a lawful fence. California attorney and cattleman William Thomas thinks it is “The rancher’s attorney at trial offered evidence for the likely that both landlord and tenant would be named in the suit. jury that the fence where the He’s seen it plenty of times. Typically, the landlord is included horses broke through was a because fences are considered fixtures that go with the land he corner section recently rebuilt owns. Also, landowners are often viewed as having deep pockets. and reinforced with extra posts The tenant cattle owner would be named as having responsibility and cross-posts and that the www.hereford.org October 2011 / 53