It's always iffy to comment on legal issues with a client.?ÿ
I found myself there today.?ÿ
A client is wanting some land surveyed that's bounded on the south by a state highway. I don't know yet if the highway is in fee or an easement. The GIS suggests that it's an easement. If so his land probably covers about 3/4ths of the ROW width, this portion of highway does not run east-west, more of a WNW, ESE line.?ÿ
Anyway there was a fire and the fence along the north ROW was very damaged. He called the state and they told him that's it's the landowners responsibility to rebuilt the ROW fence. I printed out the fence law that suggests otherwise.?ÿ
I live and work in fence out states. No one is required to fence in livestock.?ÿ
In South dakota the interstate fence is built 1ft inside ROW so that the state owns and maintains it. On all other highways it's built 1ft outside the ROW so it becomes the landowners.
We are a fence in state, so there are many fences.?ÿ Partition fences are to be built along the property line within reason.?ÿ There is no requirement to have a survey proving where the line is, though.?ÿ I can see how the DOT gets away with putting their fence inside of the ROW line as they have no intention of keeping animals on their side of the fence.?ÿ One has to have the intention of keeping animals controlled on their property in order to be required to share in fence building and maintenance here.
If you really want to have some fun, go look at your state statutes relative to fence law.?ÿ Ours include what to do if the fence in along a county line and the counties have different practices.?ÿ For example, there is a section or two that involves running hogs in a field that has a fence running on a county line and the adjoining county does not allow hogs to run in the open.
Whose fence was it??ÿ The State or the property owner??ÿ Where I am, Ohio, the State considers highway easement and warranty deed/fee title to be the same: it's the State's control and responsibility.?ÿ Private items constructed inside the r/w will not be reimbursed to the property owner.
Any fence can be looked on as shared once constructed. It is the responsibility of both parties. They meet at the mid-point of the fence line looking at each other from their land and each takes the fence to the right for maintenance.?ÿ
Of course if one party doesn't care if livestock enters their land they may refuse to participate. I can see the state asking for half at most.?ÿ
An urban/rural land owner sued a rancher that drove some cattle down a highway. His land near town doesn't have a highway fence, it does have a pond and nice yard that the cattle broke for in passing. By the time the cowboys gathered up the cattle the horses and cattle made a mess. The landowner sued for damages.
The judge ruled for the rancher.?ÿ
ORS 96.010 appears to say that you can charge your neighbor up to 50% the cost of a boundary line fence.
One must read several statutes in some cases to get the full story for your state and county.?ÿ The old rule of thumb was that when looking at the fence from your property you were responsible for the maintenance of the right half of the fence.?ÿ That may or may not be written into a statute in your state.?ÿ Here the owners are mutually liable for the upkeep of the entire fence to conform to what constitutes a legal fence.?ÿ Many may discover the definition of a legal fence is not much of a fence compared to what they prefer.?ÿ In fact, an electric fence can be a legal fence if constructed and maintained per the definition in the statute.?ÿ I prefer a minimum of six wires with four barbs (not two) with the heavy weight steel posts having a minimum length of six feet with wooden posts (hedge in my neck of the woods) located at significant break points so as to secure the fence better and keep the wires somewhat parallel to the ground surface to the extent possible.?ÿ Specially designed flood gates are to be installed where water may flow annually higher than the second wire from the bottom.?ÿ What I have described far exceeds the definition of a legal fence here.?ÿ I can only assess the neighbor for half the cost of construction a legal fence..
The statutes should lay out precisely who the designated fence viewers are to be and what their powers are in enforcing the continuous maintenance of a legal fence between neighbors.?ÿ We have gained neighbors who are out-of-state hunters and land owners.?ÿ Most like their property to be as wooly as possible.?ÿ Removing an old fence and tree row to construct a modern fence is something they normally refuse to pay for and get away with it because they are not attempting to run livestock on their property.?ÿ If the fence viewers were to go through the process and award a level of payment to the adjoining farmer/rancher, it can be added to their next property tax statement and recovered in that method so those funds can then be paid to the one building the fence, if necessary.
In CA they go as far as shared costs for the monuments as well as the fence.
CA Civil Code 841
(a)?ÿAdjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
(b)?ÿ(1)?ÿAdjoining landowners are presumed to share an equal benefit from any fence dividing their properties and, unless otherwise agreed to by the parties in a written agreement, shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.
It depends- on the agreement in place at the time the fence was constructed/ if any. If there was a RW purchase for the RW and the fence was a part of the agreement there should be a fence paragraph that talks about it. It might say that the fox is to become the responsibility of the land owner after installation.
ORS 96.010 appears to say that you can charge your neighbor up to 50% the cost of a boundary line fence.
my not so neighborly neighbor tried to sue me for this a few years back citing this ORS. My attorney said that it would be very tough for my neighbor to win because the rest of my land was not fenced. My neighbors fence was not benefiting me by keeping my field, meadow or lot enclosed. That is where I realized that even when I read a law I have to be careful telling clients what I "know", b/c I did not catch that enclosure portion.?ÿ
Fx =fence in my world not so much in Autocorrect land
?ÿAutocorrect
No, no, it's Autocorrupt
Wow, I had no idea any state would let me charge my neighbor for a fence I decided to build.?ÿ That seems insane to me.?ÿ
I'm not aware of a single law case in Oregon that cites Chapter 96. I'm sure that is because the law has openings in it that any junior lawyer could drive a truck through.?ÿ?ÿ
If both parties benefit, both should pay.?ÿ If only one benefits and the other would prefer there be no fence, the one putting it up will pay the full load.
Another entertaining thing is that neighbors can agree to which half of the fence they wish to maintain so long as they record an affidavit in the courthouse, indexed to both tracts, that states clearly what the agreement is.?ÿ I can think of one case where the traditional awarding of the right hand half was reversed because one fellow raised sheep on the north half of the common boundary and needed a sheep fence there while the south end which was his traditional end only needed cattle fencing which the neighbor needed.?ÿ So that is what they did and had it recorded.?ÿ The days of sheep raising are largely gone around here so when the fence was due to be replaced the current owners went together and built a cattle fence along the entire stretch and shared the expenses.?ÿ They agreed to ignore the affidavit of record.
@mightymoe maybe where you, but not where I am with a state highway involved.
State fence laws most likely will not apply to state row. Seems many replies got to the fence sharing which would apply to 2 private adjoiners. The OP is state row and their adnoiner.?ÿ