Dealing with my neighbor — fences

Some time ago, I posted about dealing with the neighbors when it comes to trees.  This entry will be about another common neighbor issue — fences.  Unlike trees, the topic of fences has its very own Title in the Idaho statutes (Title 35).  Rightly or wrongly, this puts it on a level with other Titles, such as “Courts and Court Officials,” “Revenue and Taxation,” “Insurance,” and “Crimes and Punishments.”  Accordingly, there are a number of specific laws that deal with fences, highlighting the unique role fences have played in the development of the West.

For starters, Idaho Code Section 35-101 defines a “lawful fence” to include the following:

  • at least 4.5 feet high;
  • the bottom must be no more than 20 inches above the ground; and
  • the space between the top and the bottom must be “well divided.”

Section 35-102 goes on to describe lawful fences in more detail, including specific instructions for fences made of stone, worm fence, posts with boards, and wire.  It also provides that virtually anything that presents a suitable obstruction to livestock is a lawful fence, including rivers, mountains, creeks, etc.

Section 35-104 sets up the general rule governing “line fences,” or fences that run along the boundary between two tracts of land.  Essentially, each landowner is responsible for erecting and maintaining half of the boundary fence between the property — specifically the left half.  This almost sounds like a joke, but it isn’t: “Each adjoining land owner . . . must construct and keep in repair that half of the line fence between their respective tracts of land which is to his left when he is standing on his own land facing the other. . . .”

So why does Idaho have these specific fencing laws?  Cows.  Idaho follows the rule of most western states: cattle that wander onto someone else’s land are not trespassing.  This can be a big deal — cattle can do significant damage to land if given the opportunity.  So it is incumbent on land owners to fence out the neighbor’s cows and the fence laws establish the minimum standard for doing so.  If a landowner erects a lawful fence and the neighbor’s cows still make it through the fence, then the fence owner does have a claim against the livestock owner.  Thus the specific rules regarding fencing.  (This general rule has been limited somewhat over time by the creation of herd districts and other legislative efforts to restrict the free-roaming of livestock.)

But these laws don’t necessarily help resolve the inevitable disputes that arise in urban areas between two homeowners regarding the fences between their properties.  Often CCRs on the property will dictate particular types of fencing and may define who will pay for the fencing.  Often, however, the rule is simply that each neighbor pays for half of the cost of the fence, in the spirit of Section 35-104.  This is great, in theory, but can breakdown in practice where, for example, one neighbor wants to make a significant upgrade to the style of fence, or where the neighbors disagree about the location or orientation of the fence.  Another issue that can arise is where one landowner wishes to “allow his land to be uninclosed [sic]. . . .”  In that case, the unenclosed landowner would not have to pay for the cost of half of the fence.

As with most legal disputes involving people in ongoing relationships (neighbors, ex-spouses, business and supplier, etc.), the best solution may well be whatever the parties can agree to, rather than going through a judicial proceeding.  In these cases, the “wine and cheese” or “coffee and cookies” approach may be the best solution (present the neighbor with plenty of wine and cheese, and only then broach the issue of paying for that new fence).

As a final note, be aware that anyone who carelessly exposes livestock to injury by leaving barbed wire “strewn around on the ground” face a fine of no less than $5 and no more than $25.  Idaho Code Sections 35-301, 35-305.  You just never know what interesting laws you’ll find on the books…

5 comments

  1. I live in a new neighborhood where the developer and builder did not erect any fences in favor of an “open” feeling to the neighborhood. We are allowed to erect our own (with specific guidelines as to the type of fence). One neighbor has approached me about putting up a fence and sharing the cost for the portion of the fence we would share. At this point, we want to keep our lot unenclosed and are not going to share in the cost. If at some point more neighbors erect a fence (we have four total – one on each side and two in the back), we may decide to finish enclosing our lot just for aesthetic reasons (e.g., if both sides and one in back fenced in theirs, there would be an odd gap in the back and openings in the front).

    I do not live in Idaho, but wonder how Idaho law would apply in this case. Would we need to go back and retroactively pay our neighbors who had erected a fence? This, of course, does not even bring in the problem of the orientation of the fence.

    1. A good question, Steve. Off the top of my head: once your property becomes “enclosed” (which isn’t really defined well), then you would be on the hook for half of any future maintenance or replacement of the fences. (Theoretically, only the “left” half, but practically speaking no one seems to follow this rule.) As far as retroactive payment, it would be pretty difficult for the neighbors who erected fences without your approval to seek contribution from you once you decide to enclose your property, unless they could make some showing of bad faith. If, for example, you erect your fences a week after someone else erects theirs, you might be in trouble.

      Lots of jurisdictions follow a “use” rule – that you pay for a fence that you use. How each place defines “use,” though, is interesting. One way to “use” a fence is to use the land right up to the fence (plant a garden, etc.). Another use is if you attach something to the fence (like another fence). (Having written this, it dawns on me that we need a different spelling for the verb and noun forms of “use.”) Or maybe you have dogs and so you “use” the fence by allowing your dogs to roam your yard. Thus, the need to check your local laws on these fence issues.

      It thus becomes beneficial for you to be a late fence-erector. If you wait to put up fences until your neighbors have mostly enclosed their yards, you are more likely to be able to “force” contribution from neighbors when you erect your fences. Of course, if everyone in the neighborhood follows that rule, then no one will erect fences and you will all stay fence-free…

  2. […] a recent post about dealing with your neighbor when it comes to fences, I mentioned “CCRs” as one possible location for information or rules governing your […]

  3. We are going to be hiring a fence company to put up a fence. We’ve had them out and have the paper work written up. One neighbor is splitting the cost with us and signed their papers with the fence company and the other neighbor told us no and won’t sign. We live outside the city limits and have no CC&R’s…..they are old CC&R’s with no one to enforce them. We had a surveyor come out and now we found out our old fence is not on the property line. We now gaine 12″ onto what we thought was their property. They have a shop that was supposedly built on the property line before they owned the property and before we owned our property. Well now their shop is into our property 12″. What should we do to protect ourselves and what can we do to make this a good situation for everyone?

    1. Kim, as with everything on this blog, I am not in a position to give specific legal advice on your case. What I can say is that boundary disputes are complex cases. If you and your neighbor can’t work out an agreement between you, you should certainly talk to a lawyer with experience in that area for help specific to your situation.

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