FENCES

Enclosures composed of any substance that will present an adequate blockade around a field, yard, or other such expanse of land for the purpose of prohibiting intrusions from outside.

A landowner is entitled to construct a fence along the boundaries of his or her property, but statutes may regulate the building and maintenance of fences. The laws of some states make provisions for the establishment of fence districts to erect and maintain fences. Fence districts are sometimes given the authority to levy taxes to absorb the costs of building and maintaining the fences.

Generally a landowner has the right to construct a partition fence on the border of the property adjoining his or her land. Owners of adjoining land may enter into agreements setting forth their rights and liabilities regarding the erection, maintenance, and repair of partition fences. State statutes sometimes govern landowners' obligations with respect to such fences. Such statutes differ from one jurisdiction to another regarding what lands come within the scope of their regulation. Some of these statutes apply solely to agricultural lands, whereas others also control fences between urban lots. Unless otherwise provided by statute or agreement to the contrary, both parties share equally the duty to maintain the entire partition fence. Neither may allege that the other was neglectful. Various statutes permit a landowner to construct or repair the partition fence in its entirety upon a failure of an adjacent owner to build or repair his or her portion. Subsequently, the one owner may bring an action against the neighbor for a contribution toward the expenses incurred. Generally recovery is limited to half the expense of the fence. Some fence statutes provide that the amount recoverable from a defaulting property owner is made a lien on that owner's land.

Theoretically, the ideal location for a partition fence is along the boundary line between adjacent lands. Practically, substantial compliance with this requirement is adequate. An equal and reasonable amount of each owner's property may be used for construction of the structure.

A partition fence built on the boundary is deemed the joint property of adjacent landowners. For this reason, a property owner may not eliminate a partition fence without first obtaining the neighbor's consent. The laws of some states make removal of a partition fence by an owner of adjoining land contingent upon formal notice to other landowners. A landowner may bring an action for whatever damages are suffered if a fence has been improperly removed or destroyed. The standard for measuring damages for such removal or destruction is its value at the time, which is determined by replacement costs minus depreciation for age and use.

A property owner who causes injury to livestock through negligent maintenance of a fence will be held liable for resulting damages. A landowner who erects a barbed wire fence is not automatically liable to one whose livestock suffer injury. If, however, a barbed wire fence is so negligently maintained as to become a trap for passing livestock, the owner will be held liable for injuries even if the fence is entirely on his or her own property. A landowner who leaves barbed wire on the ground without protection after erecting a fence is liable to the owner of the adjacent land for injury to that owner's livestock.

If someone builds a fence on another person's land without any authority to do so, the landowner may remove or destroy such fence. An individual may not, however, remove or destroy a fence on another individual's land. A number of states impose criminal penalties on an individual who unlawfully fences the land of another.

cross-references

Adjoining Landowners.

Fences (1987), a play by August Wilson. [46th St. Theatre, 526 perf.; Pulitzer Prize, Tony, NYDCC Awards.] Troy Maxson ( James Earl Jones), once a promising baseball player in the Negro leagues, is stuck in the 1950s driving a garbage truck in Philadelphia. He is bitter because even his athletic abilities have not allowed him to rise in a white world. Troy builds a fence around his house—not only to keep the white world at a distance but also to keep away Death, with whom he insists he has wrestled and won. When his high‐school‐age son Cory ( Courtney B. Vance) shows possibilities as a football star and is wooed by college scholarships, Troy belittles the offers and blocks Cory's chances for success. Troy's resilient wife, Rose ( Mary Alice), who is raising Troy's illegitimate baby after his mistress dies in childbirth, tries to comfort Cory. Only after Troy is dead and Cory returns home from the Marines can the two of them begin to reconcile their feelings for the strict, tormented Troy. Lloyd Richards directed the engrossing drama that allowed Jones and Alice to give towering performances; all three won Tony Awards.