I read a court case today from Montana and it discussed partition fences and specifically about a situation where the fence couldn't be built on the boundary and so the court granted the right for one owner to build the fence on the adjioner. Anyway, I searched and found what follows from the Montana State Code. So how does this affect the boundaries, is a partition fence considered the boundary in Montana?
The case is: Montgomery v. Gehring, 145 Mont. 278, 283, 400 P.2d 403, 406 (1965)
TITLE 70 PROPERTY
CHAPTER 16 RIGHTS AND OBLIGATIONS INCIDENTAL TO OWNERSHIP IN REAL PROPERTY
70-16-205 Monuments and fences -- mutual obligation of adjoining owners.
(1) Coterminous owners are mutually bound equally to maintain:
(a) the boundaries and monuments between them;
(b) the fences between them, unless one of them chooses to let his land lie without fencing, in which case if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter. However, using land for grazing or pasturage of any kind whatsoever must be considered a usage of the land, and the land must not be considered as lying idle under the provisions of this section.
(2) Except as provided by prescription, custom, or agreement between coterminous owners, each coterminous owner shall maintain all fencing to the right of the midpoint of the common boundary line as viewed from his land. If the land of one owner is entirely surrounded by the land of another, each owner shall maintain all fencing to the right, as viewed from his land, of the northeastern corner of the surrounded land or, if there is more than one northeastern corner, then from the northernmost northeastern corner to a point midway around the surrounded land. If there is a substantial difference in terrain or topographical features of the land between the coterminous owners, responsibility for maintaining the fence must be determined by mutual agreement with consideration given to factors such as cost and time.
70-16-206 Partition fences required -- adjoining lands previously enclosed.
The occupants of adjoining lands enclosed with fences must build and maintain partition fences between their own and the next adjoining enclosure in equal shares so long as both continue to enclose the same, and such partition fence must be kept in good repair throughout the year unless the occupants otherwise mutually agree.
70-16-207 Occupant of land adjoining enclosure of another - - when required to share expense of partition fence.
If any occupant of land adjoining the enclosure of another enclose the same, upon the enclosure of such other person, he must within 3 months thereafter build his proportion of such partition fence or refund to the owner thereof an equal proportion of the value, at that time, of any partition fence of such adjoining occupant.
70-16-208 Partition fence when common occupancy ceases.
Whenever any lands belonging to different persons in severalty have been enclosed and occupied in common or without a partition fence between them and one of such occupants desires to occupy his part in severalty, the other occupant must, within 6 months after being notified in writing, build and maintain his proportion of such partition fence as may be necessary for that purpose, and in case of neglect or refusal so to do, the person giving such notice may build such fence at the expense of the person so neglecting or refusing, the amount expended to be recovered in an action, together with all damages he may sustain on account of such neglect or refusal.
70-16-209 Repair or rebuilding of partition fences.
In case any person neglects or refuses to repair or rebuild any partition fence which by law he ought to build or maintain, the occupant of the adjoining land may, after giving 60 days' notice that a new fence should be erected or 5 days' notice in writing that the repairing of such fence is necessary, build or repair such fence at the expense of the party so neglecting or refusing, the amount so expended to be recovered from him; and the party so neglecting or refusing, after receipt by him of the notice above provided, is liable to the party injured for all damages he may sustain thereby.
70-16-210. Removal of partition fence
If the occupants of adjoining lands build their respective portions of a partition fence and either of them at any time desires to suffer the land occupied by him to lie open, he may, after having given to the occupants of the adjoining land at least 6 months' notice of his intention so to do, remove his proportion of the partition fence unless such adjoining occupant pays or tenders to him the value thereof. If such fence be removed without notice or after payment or tender of the value as aforesaid, the person removing the same is liable to the person injured for all damages he may sustain thereby.
