Good fences really do make good neighbors

On Feb. 1, bill SF 2102 was introduced in the Iowa Senate in an attempt to amend Iowa’s long-established fence laws found in Iowa Code Ch. 359A. The bill provided that if only one landowner keeps livestock on an adjoining tract of land, that landowner would bear sole responsibility for the construction or maintenance of a partition fence upon written demand of the adjacent landowner.

If the adjacent landowner who did not contribute began keeping livestock on his or her land, that landowner would pay 50% of the costs of fencing incurred to the adjoining owner. The bill also stated that if both adjacent landowners keep livestock, both landowners would be responsible.

Finally, if either adjacent landowner no longer keeps livestock on that owner’s land for five years or more, that owner would be able to terminate participation in building or maintaining the partition fence after delivering written notice to the other owner.

Ultimately, SF 2102 did not survive the first legislative funnel date on Feb. 24.

Iowa Code Chapter 359A governs partition fencing in this state. A partition fence is a fence built on the property line between adjacent tracts of land. The law states that a landowner can be compelled to share in the cost of creating or maintaining a partition fence upon the written request of the adjacent landowner.

If the adjacent landowners cannot come to an agreement upon dividing fencing responsibilities, the Iowa Code authorizes township trustees to act as fence viewers and decide partition fence controversies. The decision of the fence viewers is binding on current and future owners. A fence viewer’s decision may be appealed to the county district court. Chapter 359A also details the requirements for a “legal” fence in Iowa, laying out the materials acceptable for a lawful fence. For an in-depth explanation of Iowa’s fencing laws, see www.calt.iastate.edu.

Is Iowa’s fence law constitutional? In 1995, the Iowa Supreme Court held that Iowa’s fencing statute is constitutional as applied to landowners who did not own animals but were required to pay for part of the maintenance of a fence adjoining land where livestock were kept. The court found that the statute applied equally to all adjoining landowners and was not “unduly oppressive.” In the case, the adjoining urban landowners who did not keep livestock argued the law requires them to “expend substantial sums of money to maintain and repair a fence, which they derive no benefit.” The court disagreed and held that “a law does not become unconstitutional because it works a hardship.”

Here are some pertinent topics concerning Iowa's fence law:

Damage by escaping livestock. Some readers have expressed concern about damage when livestock trespass upon adjoining or neighboring property due to fences in disrepair. In fact, the Iowa Legislature recently enacted a “habitual trespass” law. A habitual trespass occurs when livestock escape their enclosure at least three times in a 12-month period and trespass onto the same neighboring landowner or public road. If the sheriff or local official finds that a habitual trespass has occurred, a neighboring landowner can make a written request of the livestock owner to build or repair the fence.

Fences in town and bordering a town. The Iowa Supreme Court has stated that under the doctrine of “home rule,” a city or county ordinance cannot conflict with a state statute. Thus, a town is free to adopt its own fencing ordinances, as long as they do not conflict with Iowa Code Ch. 359A. For example, some towns have adopted ordinances banning the use of barbed wire.

Written agreements. It’s always a good idea to put any agreement into writing. Chapter 359A allows the writing and recording of fence agreements between adjoining landowners. In fact, a written and properly recorded fence agreement “runs with the land” and protects landowners old and new.

Communication is the key to avoiding fencing disputes, and a good understanding of the law remains the best way to resolve issues that do arise quickly and amicably.

Thus, the words of Robert Frost’s “Mending Wall” still ring true in Iowa: “Good fences make good neighbors.” The law clearly provides that adjacent landowners share responsibility for creation and maintenance of fences in Iowa. Iowa Code Ch. 359A will remain the law until it is changed by an act of the state Legislature and signed by the governor.

Herbold-Swalwell is an attorney with Beving, Swanson & Forrest in Des Moines. Reach her at eherbold@bevinglaw.com.

This article published in the July, 2012 edition of WALLACES FARMER.

All rights reserved. Copyright Farm Progress Cos. 2012.