Wednesday, May 07, 2008
What Should I Do When Mother Nature Ruins My Fences?
by Joe Koenen
Agricultural Business Specialist with University of Missouri Extension
This winter and spring has caused many challenges for rural landowners here in
(2) Who has the responsibility for taking care of the water gaps?
I have heard several things on this over the years such as the person downstream is
responsible for them to we split them 50 -50. Neither of those has any basis in the law either.
Water gap maintenance is determined by which portion of the fence the water gap
is on (assuming you both own livestock in the general law counties).
(3) Can’t we just put up a “hot wire” fence and be done with it? The
potential problem with putting up a high tensile or 2-strand electric or other type of
fencing is that while you and your current neighbor may agree to that, it doesn’t qualify
as a legal fence in most cases and so you may have to replace it with a “legal” fence
later on if a landowner changes and the new one doesn’t agree to that.
In some cases the fence may in bad enough shape or non-existent so that it
needs to be replaced completely. Some other issues come up when we have to
replace the fence completely.
(4) Where do we locate a new fence when we’re replacing an old one?
This may be the most complicated question we’ve discussed
so far. The easiest answer would hopefully be put it in the same place where it was.
However, that can cause a couple of other issues. Was the old fence on the exact
property line? If it wasn’t, will both parties agree to move it there (and can you agree
that the new line is the right line)? Land surveys today are much more accurate than
they were years ago but they’re not always in agreement and have changed over the
years (different spots). If the fence has been in its current location for a long time, one
party may refuse to move it citing adverse possession. Adverse possession is a legal
term that says if a fence has served as a boundary for 10 or more consecutive years
and no one has argued otherwise, it can become the legal boundary. In order to move
that fence to a different location if one neighbor refuses citing that, a court would have
to rule on it and that is expensive (hiring an attorney, etc.).
(5) We need to remove the brush along where the fence will be put,
can I just doze the old fence and the brush out?
If both parties own livestock (assuming we’re in a general
law and not a
local option law county where it would automatically apply), then first off you both are
equally responsible for the fence. In order to remove what’s left of an existing fence
or doze out the line, you must both agree to that because you both own and undivided
100% of the fence. Second, tradition in Missouri says 10 feet on both sides of the line
can be cleared to put in a new fence. However, a tradition is not the law. I do suggest
that the 10 feet is common sense and will avoid problems with the fence later on but if a
neighbor just refuses, then you can’t remove trees or brush that are not obstructing the
fence line. The “sticky” issue is that if the neighbor does not want the fence taken out,
you cannot legally take out any of it (unless only one of you has livestock in a general
(6) I’ve just decided to put a fence 10 feet inside my property line and
not hassle with the neighbor. While you can certainly do that, you and your neighbor
will then want to put something in writing on both deeds to avoid potential adverse
possession claims down the road.
Hopefully this answers a few of the most common questions being asked right
now. You can get a copy of the University Extension guide on fence law at
http://extension.missouri.edu/explore/agguides/agecon/g00810.htm or at your local
Extension Office in your county. Specific fencing and boundary questions can be
directed to me at firstname.lastname@example.org or through your local office too. Remember
that this information is for educational purposes and is not intended to be a
substitute for competent legal advice.
|David Reinbott, email@example.com
Agriculture Business Specialist
Last modified: May 07, 2008