by Clint Quarles
Attorney, Kentucky Department of Agriculture
The expression is old, and has been preserved over time because it works and is good guidance. If everyone followed this advice, however, the fence law in the commonwealth wouldn’t be needed.
I have been with the Kentucky Department of Agriculture close to 18 years. In that time, rarely a week goes by that I don’t have several calls or emails about the fence law and its applicability. The calls and the outcomes follow a similar pattern in most cases.
The first is a call that the neighbor won't build the fence that is needed, and the livestock keep getting out. This is common. As the owner of the livestock, you are ultimately responsible, either in whole or in part, to insure that your property does not escape and harm other persons or their property. While the fence law does require both neighbors to upkeep their half of the fence, other possible defenses and claims could be made in the event of a suit. Did you, as the owner of the livestock, inspect the fence for soundness prior to rotating those livestock in? In the claim that the fence has been bad or deteriorating a long time, why did you knowingly put livestock in an area that could not contain them? Usually when I point this out, the farmer sees that the fence law is not to be read in isolation, it is just part of the greater body of law that places responsibilities on land owners.
I rarely suggest a lawsuit as a solution to a fence problem. Hold a conversation before you hold a grudge. I find that frequently new rural land owners are not aware of the requirements. Sometimes one party simply doesn’t know the law or disagrees that they should pay for part of a fence they aren’t “using”. In either event, a softer approach might be the easier way to get the goal you desire, which is fence that allows you to use that portion of your farm, and keep your animals safe. I strongly suggest finding creative solutions or middle ground as opposed to charging ahead with a copy of the law in your hand. You want a good relationship with the neighbor when you are done, and that benefit outweighs the cost of some fence in a lot of cases.
One thing to consider is your neighbors ability to pay for fence. While you can expense that, your non-farm neighbor might not have that ability. Neighbors that are retired or have other financial limitations might not have the ability to pay for fence. Consider this when approaching them, it might make things easier to understand.
The second thing that happens in most cases of a fence line dispute is a dispute over the property lines. The “fence law” in our state is a law creating duties for a boundary line fence. Knowing were a boundary is located is critical. Know what you own and understand your deed and survey if you have one PRIOR to speaking to your neighbor. Deeds and surveys are wonderful evidence of ownership, but might conflict with what your neighbors deed and survey might say. There logically can only be one line, but sometimes fence needs become secondary to a who-owns-what fight. Read what you have and see if it references actual physical things you can go walk and see. If you have a survey and a plat map, take a copy and compare it to what you can go see, and to google earth maps.
Deeds are paper and only capture what is written on them. Behavior is a second issue with boundaries. They can and do “drift” for several reasons. Sometimes old fences were not built on a line and have become the new line over the years. Other times persons, with permission or not, moved a line for some purpose and have maintained that portion as part of there property. This is especially bad when in either scenario the persons the built in the wrong place or actively moved a fence line are no longer living to explain the why of an action. Beware of the “well my grandpa told me this was the line” statements, as the people making them might have been told that over their life by a person that might have been mistaken.
Third, the type of fence to be constructed or maintained frequently becomes an issue. In Kentucky, I have most often seen woven wire with a strand of barbed wire on top. This supports most cattle operations (I say most as my current group of heifers are challenging me on this). When neighbors have different livestock, having a discussion about fence for that usage is appropriate so that one side or the other might modify existing fence or add secondary support to aid in motivating keeping the livestock in.
And lastly, livestock tend to stay where they are happy. Maintaining enough grass and forage this summer has been a challenge. It is foreseeable to have droughts and to have motivated breeding stock in field next to neighbors that have favorable conditions. Have a plan to keep them away from one another.
Clint Quarles,
is an attorney with the Kentucky Department of Agriculture
107 Corporate Drive Frankfort, KY 40601
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