Gerald A. Harrison, Extension Economist, Department of Agricultural Economics, Paul D. Spillers, Attorney

Line Fence Law: Indiana law makes it a duty for landowners outside corporate town or city limits to separate their land from that of their adjoining neighbor by a partition fence (lC 32-10-9-2). The law states that unless there is a recorded agreement to the contrary, a landowner shall build the right one-half of the line fence determined by standing on his or her own property and facing the adjoining neighbor's properly. If a landowner has constructed and maintained a one-half of a given partition fence other than his right one-half for five or more years, then the right one-half rule may be ignored.

Generally, the law supports special agreements, even when oral, between adjoining landowners for fence maintenance. However, for agreements to be binding (covenants running with the land) on subsequent landowners, they should be in writing and recorded. Covenants in deeds concerning the maintenance of fences have been held by Indiana courts to be binding on future as well as current landowners.

The duty to build or repair arises with a request. If an adjoining landowner refuses to construct or maintain his share of a line fence, the other landowner can seek the assistance of the trustee of the township in which the line fence is located. But first the landowner seeking assistance must build or repair his share and provide a notice to build or repair to the neighbor. If, after 20 days, the neighbor has not performed, then the township trustee may be contacted for assistance.

The trustee has a reasonable time to determine the probable cost of the project and to notify the non-performing landowner. If the notified landowner does not perform the work in 20 days, the trustee is required to have the work performed. The law provides for costs to be collected, along with property taxes of the non-performing landowner, after a certified statement is presented to the county auditor.

While it is unlikely that neighboring farm landowners in Indiana could impose an agreement upon subsequent owners that there be no line fence, courts in two northeastern states (Vermont and New York) have held the "right-half rule" to be unconstitutional where rural residential landowners objected to building half the fence for a livestock farmer.

"Lawful" partition fences should be "hog tight" and capable of holding sheep, cattle, mules, and horses. All fences of every structure "must be sufficiently tight and strong to hold hogs...H (lC 32-10-9-3). Minimum required height is stated as 4 feet for wire, pickets, or boards; 4-1/2 feet for rail fence; and 5 feet for worm rails.

Where a ditch or creek crosses the division line, the fence across it may entail unusual expense such as a floodgate. If the property owners cannot agree on sharing expenses for this special construction or maintenance, the trustee is required to appoint three disinterested parties to resolve the matter by apportioning expenses. This is the case even though the situation exists on the half of the boundary belonging to one landowner. If a ditch or creek includes the dividing line, such that a fence cannot be maintained on the line, then each landowner is required to construct and maintain a separate "line" fence.

If a landowner wishes to remove a segment of a line fence, his neighbor is entitled to six-months' notice. While the neighbor may not object to the fence being removed, he is entitled to its protection for an unharvested crop, even though six months may have elapsed after notice.

Line fences of hedge or other lawful vegetation are required to be trimmed at least once annually to no more than 5 feet in height and 3 feet in width. Again, if a landowner or tenant ignores this rule, the township trustee is required by statutory procedures to see that the trimming is done and that the non-performing landowner is billed. Appropriate courts are available to enforce the statute.

Fencing the Railroad Rights-of-Way: Indiana law requires all railroads to construct and maintain fences along rights-off way sufficient to prevent livestock from getting onto the tracks. Railroads are required to fence the entire distance between their right-of-way and the abutting farmer's land that is entitled to a fence.

If right-of-way fences are not constructed or maintained properly, then the railroad is liable to the landowner for all damages which may result, including, but not limited to, livestock killed or injured on the railroad track. Courts have required railroads to prove that an injured animal entered the right-of-way at a point where no fence was required, if the railroad raises an "entry where no fence required" defense.

Fencing Highway Rights-of-Way, Public Parks, and Forests: Interstate highways and other specified roadways are limited access, which normally implies fencing of all rights-of-way. limited access right-of-way fences will be constructed by the state at federal and state expense and maintained by them even though the farmer may benefit. However, such fences are in place to restrict access for safety and for protection of the right-of-way rather than to accommodate livestock production by the farmer. Variances may be granted to avoid having a fence fronting a business or other property in the case of non-interstate, limited access roads. Safety along and the integrity of the right-of-way must be maintained in order to allow a variance to continue.

When roads and highways are not limited access, the fencing of the right-of-ways is all at the expense of the abutting property owner. In specific cases, a fence may be built by the state as part of the compensation for right-of-way acquisition. But in these cases, the fence becomes the property and responsibility of the abutting owner.

Indiana state park policy is to share costs with neighboring landowners when a fence is needed for livestock. Signs rather than fences are used to mark boundaries, unless signs are inadequate for the situation.

National parks and forests normally do not fence their boundaries and do not come under the state law on fencing, they may fence at the government's expense when it is needed to protect a specific development or area. While they will share expenses for a survey, they will not share expenses with a farmer who needs a fence for livestock. In fact, a federal court case in West Virginia required the landowner to enclose his property to avoid violating federal regulations against his livestock being on the public property.

This case and prior cases have held that the federal government was not bound by the state law covering cost sharing. There is no law requiring the U.S. to fence its park and forest properties.

Liability for Animals: Under common law (before or without statutes), landowners had no duty to fence their land unless they maintained animals on the premises. A keeper of animals was under a duty to keep them enclosed. If the animals escaped from the property, the owner was liable for damages to persons and property caused by the animals. In 1887 Indiana placed this rule into a statute. It is the law today that: "If any domestic animal breaks into an enclosure or wanders upon the lands of another, the person injured thereby, shall recover the amount of damages done: it shall not be necessary to allege or prove the existence of a lawful fence in order to recover for damages done" (lC 32-10-2-2).

Actually, Indiana law provides for an election by each township of a "fencing-out" or "fencing-in" law. "Fencing-out" is the open-range option, whereby the landowner must build fences on his own if he desires to keep animals off his land. Under a fencing-out option, the injured party would have to prove that livestock broke through his lawful fence before damages could be recovered.

Although the above option exists, all of Indiana is under modified fencing-in law, with adjoining landowners sharing in the construction and maintenance of line fences. Indiana's line fence law is an exception to the basic rule of fencing-in. A landowner is compelled to help build and maintain lawful line fences, even if il is only to keep his neighbor's livestock from trespassing. The requirement to share in the construction and maintenance of a line fence has an element of the fencing-out rule.

But, the livestock owner (landowner or tenant) has a duty to keep animals off the roadways with appropriate "exterior" farmstead fences. Animals might escape from a farmstead, travel clown a roadway, and enter a neighbor's field where there is no gate or exterior fence. The farmer without livestock has no duty to build and exterior fence.. Since the basic law requires fencing-in one's own livestock, the farmer may be strictly liable for the trespasses of his animals.

According to past litigation, if animals go through a line fence and damage a neighbor's property, whether the animal keeper is liable for damages should depend upon who was responsible for the portion of line fence that permitted passage. It is possible that the neighbor with damages was al fault in not maintaining his portion of the line fence.

It seems reasonable that this should be the rule, in order to place a penalty upon the landowner who did not maintain his share of the fence. Adjoining landowners must have adequate notice, as explained above, to repair a fence before livestock are turned against an inadequate fence. Patience, neighborliness, good judgment, and legal counsel may be necessary to avoid liability, even when landowners think they are within their rights.

It may be difficult or impossible to determine which part of the fence the animal escaped through. In that case, the animal keeper (more likely his insurer) will most likely be held responsible for damages. Because of the cost of investigations and disputes, reasonable damages may be paid by an insurance company without substantial inquiry into the facts to determine fault.

Indiana law permits a property owner to "take-up" animals that are trespassing and hold them until proper compensation is offered for damages and the cost of keeping the animal(s). If requested, the statute requires the township trustee to appoint two disinterested parties to determine the damages. If the owner of the animal(s) offers an amount to settle and subsequent court proceedings award no more than the settlement offered, the party claiming damages is assessed the court costs.

Landowners and farm operators need adequate liability insurance, since trespassing animals can lead to tenant and landowner liability. While a 1969 statute helps limit the landowners' liability for injury to recreational trespassers (e.g., snowmobiling, hiking, and hunting), it does not cover extraordinary hazards or the attractive nuisance problem as that doctrine relates to injury to trespassing children.

Adverse Possession: Occasionally, fences are not on the boundary line consistent with the legal description of the property. Indiana case law has held just as the statute states, that the line fence is to be placed on the boundary line. Yet disputes may develop as to what is the proper place for the fence. The fence may have been erected under an erroneous assumption about the location of the line and have 'stood for many years without a question being raised about the placement of the fence. However, all landowners should be aware that an adjoining neighbor may acquire a strip or segment of their land in this fashion.

Adverse possession and a "quiet title" lawsuit are legal measures that can be used to resolve such disputes. If the use of someone else's land is what the law describes as: open, continuous, distinctive and exclusive, adverse and notorious for a ten-year period, title may be established by adverse possession. Once these elements are established to the satisfaction of a court or jury, fee simple title to the disputed tract is conferred on the claimant by operation of the law, thereby extinguishing title in the original owner.

An adverse possessor may prevail without knowledge of the mistake until his neighbor raises the issue. The adverse possessor merely needs to go about using the land as if it were his. If the possessor knows there is a disagreement, he may win out by simply using the property for at least ten years.

The adverse possessor in Indiana does not have to prove he paid taxes on the disputed segment, since the neighbor would be billed for land taxes based on the acreage in the legal description. If the adjoining landowner accepts the erroneous boundary, knowing or not knowing it is wrong, the law, after ten years, may give the property to the adverse possessor. However, if an owner believes another possesses his land, he may bring a lawsuit to quiet title.

Either party can bring a quiet title lawsuit to let the court decide who is entitled to let the court decide who is entitled to the disputed land. The landowner who claims the loss of land must not let the ten-year statutory period elapse, or else the possessor's rights may be irrefutable. Once a court renders a judgment, this determines who has marketable title in the disputed parcel. The suit and judgment may be necessary to clear the record, even if it appears that all the requirements of adverse possession have been satisfied.

However, a 1982 Indiana appellate Court case established that ownership to a strip of land could shift to a neighbor where there was an agreement by the abutting neighbors to treat a fence as a legal boundary line. Further, ownership can shift to the possessor of the strip of land even though the property was not held for the statutory period (10 years) required under the theory of adverse possession. This was held to be binding on subsequent owners as long as no fraud could be shown to be present.

Conclusion: It is important that all parties know their rights and duties under the law, because it is generally costly in terms of both dollars and human relationships to exercise the full recourse offered by the courts and the law. Since most people value good relationships with their neighbors, compromise may be best.