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Civil Liability

Any person constructing or maintaining a fence in violation of a statute will be liable in a civil action for all damages caused by reason of injury resulting from such a defective fence.  Thus, two parties cannot simply agree to fence off a boundary without following a statutory procedure.

Generally, an individual has no right to destroy a fence that is situated in another man’s property.  Liability for destruction of a fence is similar to the liability incurred for acts against another’s property.  A plea that a destroyed fence has been replaced by another fence will not relieve a tortfeasor from his/her civil liability[i].

A landowner can remove a fence that is located wholly upon his/her own land if there is no statute to the contrary.  However, such fence should not be a partition fence in a technical sense.  Also, even a partition or division fence can be removed or destroyed by an adjoining landowner for the purpose of repair or rebuilding[ii].

Generally, when adjoining landowners own a partition fence as tenants in common, they have no right to remove, destroy, or injure such partition fence.  If any one of the two adjoining landowners removes a partition fence, then s/he will be liable to the other for the resulting damages[iii].  An exception to this rule is that if an adjoining landowner erects a whole fence, upon neglect or refusal from the other landowner to erect a partition fence, and if s/he erects such fence on the former’s land by mistake, then the former land owner can remove such a fence without incurring any liability.

A landowner can remove a fence without incurring civil liability in the following circumstances:

  • if such a fence was erected by a landowner by himself/herself and the fence does not stand in the boundary line[iv];
  • if such a fence was built by a predecessor in title;
  • if such fence was built by an adjoining owner without an agreement about the right of removal[v]; and
  • if such a fence was erected in an owner’s land by another person without any right.

A fence that extends across or into a street or a highway can be removed only by a public authority having the responsibility to maintain a way.  Thus, a state’s public authority has government immunity[vi] and will not incur any civil liability for the removal of a fence.  However, governmental immunity will not extend to damages resulting from negligence in such removal.

[i] Maryland Motor Car Ins. Co. v. Smith, 254 S.W. 526 (Tex. Civ. App. 1923).

[ii] Hickory Grove Golf Club v. Hedrick, 2003 Ohio 4031 (Ohio Ct. App., Ashtabula County July 25, 2003).

[iii] Hidden Hollow Ranch v. Collins, 146 Mont. 321 (Mont. 1965).

[iv] Sims v. Field, 74 Mo. 139 (Mo. 1881).

[v] Kimball v. Adams, 52 Wis. 554 (Wis. 1881).

[vi] Miller v. Detroit, Y. & A. A. R. Co., 125 Mich. 171 (Mich. 1900).

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