Farming Magazine - March, 2014

FEATURES

Fence Laws in the Northeast

By David Weinstock and Curt Harler


Originally, states passed fence laws to contain wandering livestock and prevent personal injury and property damage.
Photo by noblejose/morguefile.com.

Fences are quite possibly the most contentious structures humans ever invented. While some might argue boundaries are the real problem, fences are the physical expression of them, making them the focus of many disputes.

There are natural fences (rivers, streams and ponds) as well as constructed fences (stock wire, barbed wire, high-tensile wire, walls, hedges and ditches).

Originally, states passed fence laws to contain wandering livestock and prevent personal injury and property damage. Later laws were passed to prevent the building of "spite" or "nuisance" fences, which block light and views. Their remedy was to limit fence height; Massachusetts, for example, limits it to 6 feet.

Most U.S. fence laws are based on English common law. It defines two kinds of property: private and common. Private landowners must fence their livestock in, while those whose land borders common land must build fences to keep rangeland animals out. Fence laws in both the eastern and western U.S. are patterned after these concepts.

One of the more contentious parts of fence law requires landowners on both sides of a boundary fence to share equally the cost of building and maintaining it. As time passed, the number of states that retained this practice decreased. Only five northeastern states still require cost sharing: Connecticut, Delaware, Maine, Massachusetts and New Hampshire. In contrast, Pennsylvania and Vermont struck down that provision.

Check before building

Farmers planning to build fences, especially boundary fences, would do well to learn what their state and local laws say about fence construction. Local considerations are usually a balance of zoning and building codes, says John Rice, land use attorney at Grim, Biehn & Thatcher, Perkasie, Pa. "Building codes will determine types, placement, heights and other specifications," he says. "Zoning ordinances will cover things like setbacks and allowable construction materials."

State statutes can usually be found in the sections on real estate law or local government powers. The laws specify what a legal fence is, how and where boundary fences can be built, potential liability issues, and who does the enforcement.

Following are summaries of state fence laws in the Northeast, complete with statutory listings.

Connecticut

Connecticut General Statutes, Volume 12, Title 47, Chapter 823, Sections 47-43 to 47-56

Connecticut law defines two kinds of fences: those in cities and those outside of cities. Outside of cities, rail fences must be 4.5 feet high and stone walls 4 feet high. Minimal wire fences must have four strands, no more than 12 inches apart, stretched tightly, with the lower strand not more than 12 inches and the upper strand no less than 4 feet from the ground. They must be hung from "good, substantial posts" set no more than 16 feet apart.

Fence viewers - appointed public servants whose job it is to enforce fence law - and selectmen can decide if fences made from other materials qualify. Connecticut fence viewers are paid $2 per day of service.

Adjoining property owners must share construction and maintenance costs. Even if a landowner adds a fence after their neighbor built one, the owner of the new fence will still be assessed for half the value of the boundary fence and responsible for their share of the maintenance costs.

If repairs must be made and one landowner refuses, the other may file a complaint. If no action is taken within 15 days after the complaint was decided, the repairs can be made by the complaining party. Notice of the decision is forwarded to both the landowner and the mortgage holder. If the adjacent landowner still refuses to pay, a lien will be placed on the property for the uncooperative landowner's share of the repairs.

Any damage done to fences by livestock must be covered by the animal's owners.

If one or both landowners refuse to build a boundary fence when ordered to do so, they can be fined up to $200 per day until they begin construction.

Barbed wire fences cannot be located within 412.5 feet (25 rods) of houses or barns, unless the barn is used to raise livestock and both landowners agree. They also cannot be built adjacent to schools or public buildings, with few exceptions.

Maine

Maine Revised Statutes, Title 30-A, Chapter 133, Sections 2951-2966

A legal fence in Maine is 4 feet high and built of rails, timber, stone, iron or wire. Brooks, rivers, ponds, creeks, ditches and hedges can also be fences. Fence viewers can designate other objects or materials as sufficient fences.

The state has retained the provision requiring adjoining landowners to share costs of construction and maintenance of boundary fences in "good repair" unless a delay is agreed upon by both landowners. Landowners can avoid sharing the costs of a boundary fence by declaring their land open to the public and not improving the property.

Two fence viewers must be contacted to file a complaint. They determine if action is necessary and inform the responsible landowner. They can allow up to 30 days to remedy the issue.

Once the landowner has complied, the complainant may seek up to twice the value of the damage caused by the condition of the fence. If the responsible owner does not pay this amount within 30 days, complainants may take them to civil court to sue for the doubled fines and fees, plus 1 percent per month in penalties.

To assure this payment is made, the court attaches a lien on the responsible landowner's property for the amount of the settlement.

If the landowners disagree about where boundaries lie, or if a natural obstacle exists that does not allow fencing along the true line of the boundary, fence viewers are empowered to determine the final fence placement.

Maine fence viewers earn $3 a day and can be fined $3 if they neglect their duty.

Massachusetts

Massachusetts General Laws, Part I, Title VII, Chapter 49, Sections 1-21

Massachusetts' legal fence definition is very similar to Maine's.

Mayors, with the approval of city councils and selectmen, must appoint two or more fence viewers to serve one-year terms. Despite the law, most Massachusetts communities do not appoint fence viewers.

When appointed, they are paid up to $5 a day and must charge a minimum of $1 for each case considered. Their decisions are binding.

"We have lots of location squabbles," says Michael Katin, an attorney with Scheier Katin & Epstein, P.C. of Acton, Mass. "Massachusetts fence viewers are de facto optional but required de jure."

In Massachusetts, fences are limited to a 6-foot height by the spite fence law.

The state requires landowners on both sides of a boundary to share construction and maintenance costs, unless both landowners agree otherwise. If one doesn't pay, the other may file a complaint with the fence viewers and collect double the delinquent owner's share. If payment isn't made in 30 days, they may sue and add 1 percent per month as interest penalty.

New Hampshire

New Hampshire Statutes, Title XLVII, Chapters 472-476, Sections 472:1-476:3

New Hampshire allows adjoining property owners to work out share arrangements among themselves.

The law also addresses how owners whose land borders on common lands (e.g., state forests, parks, green space) can comply with the act. They can set up an association around the fence: elect officers, adopt bylaws and assess members by an agreed-upon tax to cover maintenance costs.

The state defines fences in much the same way other Northeastern states do, except for height; fences should be high enough to be "reasonably adequate for their purpose."

It also has a spite fence law, with the specific threshold of "unnecessarily exceeding 5 feet ... and erected or maintained for the purpose of annoying the owners or occupants of adjoining property." Those found guilty of building one have 30 days to remove it; for each day after the 30-day limit, the guilty party pays the complainant $10 "for their use."

New York

New York Town Law, Article 18, Sections 300-321

In 1955, the state Supreme Court defined a fence as "a barrier constructed of wood, brick, stone or other material which encloses a field or tract of land and is intended to protect the premises against intrusions and also to protect the animals on the premises from straying."

New York permits the use of barbed wire, and in the same section warns towns they may not use the law as a means to prohibit wire fences. Unlike fences made from other materials, wire fences must be repaired immediately. They must have at least four strands, and posts must be set no farther apart than 14 feet. Fence viewers may require that they be set closer.

If one landowner has not had livestock on their property for up to five years after the boundary fence's last expense, they are not required to share expenses. Livestock farmers who build fences and whose neighbors also have livestock may assess their neighbors for up to 20 percent of the "proportionate cost" annually.

In the event of a dispute, each landowner chooses one of the town's fence viewers to be one of the two people who will settle the argument. If one party does not select a fence viewer, the other party may select both fence viewers. Should both fence viewers disagree on a settlement, they may choose a third fence viewer to help them make the decision.

New York fence viewers can call on witnesses to investigate claims. They also determine livestock damages and repayment amounts.

They get $1.50 per day, payable by the landowners. They also collect 10 cents per mile when dealing with stray livestock cases and 75 cents for drafting a certificate declaring livestock to be strays.

New York law has zero tolerance for deadbeat animal owners. If landowners suffer livestock damage that does not result from their own neglect, they can attach priority liens on the animals to recover damages.

Pennsylvania

Purdon's Pennsylvania Statutes Annotated, Title 29, Section 41

"Embattled" would be a good way to describe Pennsylvania's fence law. The legislature abolished fence viewers in 1992. Then two court cases devastated its requirement for shared boundary fence expenses.

What's left is two sections legalizing wire fences, either barbed or not, along roadways and boundary lines. Then it defers all other legal definitions, such as height, materials and setbacks, to local governments.

In 1997, Pennsylvania's Superior Court ruled that landowners who do not own livestock are exempt from sharing boundary fence and maintenance costs. In 1999, it made another decision exempting residential landowners who house no livestock on their property from sharing boundary fence costs.

Settling boundary disputes and enforcing what remains of Pennsylvania's fence law is now the responsibility of county governments and the court of common pleas.

Rhode Island

Rhode Island General Laws, Section 34-10-1 to 34-10-20

Ironically, the smallest state has one of the biggest, most complicated fence definitions, describing legal dimensions for no less than seven kinds of fences, including a stone wall without flat stones, rails or posts on the top.

It defines a spite fence as one that unnecessarily exceeds 6 feet in height and is "maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property." If determined to have built a spite fence, owners can be sued to recover damages.

Landowners on both sides of a boundary fence must share construction and maintenance costs. Only owners of unimproved land are exempted.

Barbed wire may be used in boundary fences, but only if both landowners agree. Landowners can file complaints about barbed wire with a local fence viewer, who gives the offending landowner 15 days to take it down. If the barbed wire is not removed after 15 days, the fence viewer must take it down and store it. If the owner wants it back, the fence viewer must deliver it. Removal and storage costs can be recovered from the wire's owner.

Landowners have up to 15 days from the time a complaint is filed to remedy any problems. If a complainant fixes a problem, they are entitled to demand twice the cost from the fence owner.

Similar to other states, if the complainant must go to court to seek payment, a 12 percent per year interest penalty may be added.

Marshland "exposed to the flow and wash of the sea" is exempted from all parts of Rhode Island's fence law.

Fence viewers are paid $6 per day and may be fined $5 for each instance of neglecting their duties.

Vermont

Vermont Statutes Annotated, Title 24, Chapter 109

A "sufficient fence" in Vermont is 4.5 feet tall, in good repair and "so constructed as to prevent the escape of sheep."

Until 1989, all costs for boundary fence construction and maintenance were to be shared by landowners. That provision was struck down by the Supreme Court of Vermont. Landowners who do not have livestock are excused from sharing boundary fence costs.

Selectmen are the state's fence viewers. Their select board sets the fees they are paid, but they will be fined $5 for neglecting their duties.

When property lines run through areas that cannot be fenced - lakes, streams, rock outcroppings - and neighbors cannot agree where the fence should be built, selectmen determine where the fence will go and how much and what part each one will build and maintain. Their decisions are final.

Livestock owners whose animals damage another's property have 10 days to make good on the claim.

Fences damaged by acts of God and nature must be repaired within 10 days after notice has been given. Owners must also make good on any damage that may have resulted from escaping livestock within the same time frame.

Vermont residents may not erect spite fences, though the law does not specify a maximum allowable fence height. Guilty parties can be fined $100.

It's time to mend laws

There's no mistaking how old and outdated fence laws in the Northeast are. There is also no mistaking their neglect.

While fence laws may seem trivial to some, boundary issues are alive and well. "They are archaic laws, but they are gaining currency as more and more people are starting to keep livestock," says Karen Horn, director of public policy and advocacy for the Vermont League of Cities & Towns.

Many of these laws clearly have not been reviewed in years. Neighbors continue to squabble over boundaries and build spite fences. Repaired and updated, these laws could become useful again.

Dr. David Weinstock is an assistant professor of journalism at the University of Texas at Tyler. He earned his mass media Ph.D. at Michigan State University. Curt Harler, who has a B.S. in agriculture from Penn State University and an M.S. in ag from Ohio State University, is a full-time freelance writer specializing in green topics.