Friday, January 25, 2013

Worth County Fence Law Ambiguities Discussed

The Missouri Fence Law is still generating ambiguities and is still a matter of interpretation. Worth County landowners along with landowners of a few other counties met Thursday to discuss the Fence Law via remote teleconference with Joe Koenen, Ag Business Specialist with University Extension, who is a specialist in the law. But even Koenen would not promise a quick fix given the fact that it is a law that is open to interpretation.

Most of the state, including Nodaway County, is under the New General Fence Law passed last decade. It states that only if  alandowner owns livestock can he or she be required to build a boundary fence. But in Worth and Gentry counties, along with 16 other counties, are under the Local Option Law. This states that if one landowner has a "need" for a boundary fence, then both lanowners are required to contribute 1/2 to the fence. However, even that is subject to interpretation as "need" is a subjective term that can mean different things to different people.

Under the New General Law, if both landowners have livestock, they are to meet and within a "reasonable" time build or repair the boundary fence. There is no specific recourse if one landowner refuses to build their portion of the fence. There is a specific remedy for a landowner who puts livestock against a neighbor's fence later. How well it's working is subject to interpretation, along what "reasonable time" means. The Local Option law has more legal recourse, but there are still a lot of ambiguities. The landowner can give 90 days notice to other neighbors as to their need for a boundary fence and the other landowner is expected to "do this" or face legal action. A specific legal recourse is in place if one landowner refuses to cooperate; however, enforcement depends in large part on the judge. Judges have the authority to have the plaintiff build the fence and assess costs to the defendant if the plaintiff wins their case. However, given the vagueness of the fence laws, Koenen noted that there was no set way for judges to handle such fence cases.

The definition of a legal fence under the New General Law is now "wire or wood at least 4 feet high with posts no more than 12 feet apart." Other fences must be approved by a judge; Koenen noted that what was acceptable varied from judge to judge. If more than a legal fence is required, you are still required to pay for half of a legal fence. The part of the fence to build/maintain is the right half as you face each other at the midpoint of your boundary fence. Under the Local Option Law, "a legal fence is 4 barbed wire or the equivalent with posts no farther than 12 feet apart with no stays and 15 feet apart with one stay." The part of the fence to build or maintain is usually the right half as you face each other; however, as Koenen notes, that is only a tradition in the state. He pointed out that in one county in Missouri, it was the left side. Under the New General Law, it is stated that it is the right half. Landowners only have to pay half the cost of a legal fence; if one landowner wants more than a legal fence, they have to pay the extra costs.

Under both laws, you have the legal right to go onto your neighbor's property to repair your or his portion of the fence. However, you do not have the legal right to remove a fence without your neighbor's permission. You can remove brush or trees that are obstructing the fence. However, you cannot remove trees that are not physically obstructing the fence that are on the neighbor's side of the boundary without their consent. Many lands have adverse possession issues; adverse possession laws state that if a fence has been in a location for more than 10 years, a new owner may not be able to move it if the neighbor refuses. A survey alone does not overturn adverse possession in court; affected owners must use photographic evidence, witnesses, and other evidence to overcome it. Koenen said that one way around this problem would be both landowners agreeing on a clause stating that the fence does not constitute the boundary between the two properties. Another problem that has come up involves dead zones, in which there is a small portion of property that neither neighbor owns. There are other situations in which the neighbors move their fences back so much from their property lines and agree to create a no-man's land between their properties that nobody owns.

Animal trespass issues continue to be a major area of concern in fence laws. Under the New General Law, if livestock get out through your portion of the fence, you can collect actual damages or nothing depending on the condition of the fence. However, under the Local Option Law, if livestock get out through your portion of the fence, you have no legal right to collect damages of any kind. This forces absentee landowners to pay for the upkeep of their side of the fence. Under the New General Law, if livestock get out through the other side of the fence, you can collect actual damages depending on the condition of the fence. However, under the Local Option Law, if the livestock get out through the neighbor's portion of the fence, you can legally repair his part and be reimbursed for your costs of that only. More and more, Koenen noted that insurance companies are looking at the condition of the fence when evaluating insurance claims. Fewer and fewer are paying if the livestock got out on your side in Option counties.

The law is different if livestock get out through a non-boundary fence such as a road (including county dirt roads) or a creek. Under both laws, if they get out through a non-boundary fence, then you can receive double damages and distrain livestock after the first trespass. A creek has to be a navagable stream. One question that came up was if the second case of animal trespass were to happen, say, five years down the road from the first case.

Missouri first passed fence laws in 1867 following the Civil War, and it stood for nearly 100 years. However, in 1963, legislators wanted to increase livestock owner's rights and passed the Local Option. Worth County passed the Local Option last decade. In 2001, Missouri updated the General Law so that it would cover situations that did not exist back in the 1800's. However, there is still a lot that is open to interpretation. One problem, for instance, is the definition of a livestock owner; Koenen noted that he came across a misperception that horse owners are not livestock owners, which they are.

One situation that came up not covered in either fence law was a situation where there were water gaps that were all on one side of the fence. In that case, agreements have to be worked out between the two landowners about a fair division of labor. Fence agreements other than the one that is in force can be done; there is a form that must be filled in order for it to be legal; people can contact Koenen through their local extension office for it.

With no clear solutions that covered every problem, Koenen said that the first step for any landowner should be to talk to the neighbor in order to try and resolve problems. He said that he got calls from out of state landowners all the time confused about the Local Option Law. He said that it was important for affected landowners to talk to neighbors about the law; in the event of land being rented or leased; he said that it was important for renters and lesees to be made aware of the law.

No comments: