Fence, boundary issues abound

Does a landowner have a duty to build a fence in Iowa?

Special note: We have been getting a lot of questions on fences and boundary issues, so we’ll address some of them in this month’s column. Also, we would like people to be aware of our updated publication that’s available from the Center for Ag Law and Taxation on this topic.

Not necessarily. However, a landowner may compel an adjacent landowner to build or maintain a legal fence in Iowa by written request. If an adjacent landowner does not honor the request, the complaining landowner may ask the township trustees to assume the role of fence viewers.

The fence viewers must give all interested parties (adjacent landowners) five days’ notice of a hearing, called a fence viewing. Upon allocating responsibility for the fence, the fence viewers must fairly and equitably divide responsibility between the landowners. The “right-hand” rule, often thought of as the law, is merely a custom that has been used over the years to achieve an equitable result between landowners. In situations where the landowners’ respective “sides” are dramatically different, the use of the “right-hand” rule may not be equitable.

If a landowner does not appeal the fence viewers’ decision on a timely basis, the order for fencing becomes binding on the parties. If one of the parties does not comply with the order for the building or maintenance of a fence, the fence viewers may have to step in and assess the costs as a tax lien against the property of the parties who fail to comply. For an update on the requirements for a legal fence, in Iowa, visit our updated fence publication at www.calt.iastate.edu/repubs.html.

What’s the landowner’s liability for escaping livestock? In Iowa, if the escape of livestock is documented from an enclosure onto the same neighboring property or same public roadway three times in a 12-month period, a landowner may be liable for a habitual trespass and subject to a civil penalty. What other duties do livestock owners have with respect to fences?

A recent Kansas case demonstrates the need for visual inspection of fences. Here, two young men were injured when the car they were driving struck a horse that escaped from the defendant farmer’s pasture. The passengers sued the farmer for negligent failure to inspect and maintain his fence. The fence was built in 1999.

A year before the accident, a contractor installed a pipeline on the farmer’s property, creating a trench and changing the flow of water on the farmer’s land. The water runoff caused unexpected erosion and caused some of the fence posts bordering the highway to loosen and rot. After the accident, the farmer found a hole in the fence, 50 feet from the spot where he made earlier repairs. The farmer repaired the fence and permanently replaced the posts after the accident.

At trial, the farmer testified that he visually inspected the fence every day or two prior to the accident. He also testified that a heavy rainfall the evening before caused erosion where the horses and cattle escaped. The question in this case, was whether the farmer had a duty to physically inspect each fence post daily.

‘Visual inspection’

Kansas and other Midwestern courts, including Iowa, have routinely held that “visual inspection” of a fence every other day is enough to protect farmers from liability in these situations. The method of inspection must be reasonable, and in this case, the farmer’s diligence in checking the fence protected him from liability.

What’s the law in the case of boundary by acquiescence and adverse possession? Generally, an individual who possesses someone else’s land in an open and notorious fashion with the intent to take it away from them may become the true property owner after the expiration of a statutory time period and after quieting title in a court of law. Typically, there are five elements that must be satisfied to perfect title in the party claiming title to real estate via adverse possession:

actual possession of the property

open and notorious use of property

exclusive use of the property

hostile (adverse) use of the property (i.e., lack of permission)

continuous use of the property (10 years)

Some states have additional requirements. In a minority of states, a good faith belief of ownership is required. To satisfy the adverse possession statute, in Iowa, the party seeking to adversely possess a parcel of property must establish the above requirements in a court of law for a continuous 10 years.

A similar concept in Iowa is boundary by acquiescence. In the event a survey indicates a fence has been improperly placed for a period of 10 years or more, a court may find that the fence line is the true boundary because the parties treated it as the boundary.

Herbold-Swalwell is staff attorney for Iowa State University’s Center for Agricultural Law and Taxation.

This article published in the October, 2011 edition of WALLACES FARMER.

All rights reserved. Copyright Farm Progress Cos. 2011.