Any damage to a fence that is permanently affixed to real estate is considered damage to real property[i].  The jurisdiction of a court in matters involving injury to a fence is determined by looking into the location of a fence.

In order to get damages for an injury to a fence, a plaintiff must prove the following:

• that there was a actual damage; and
• that a defendant’s negligence was the only reason for damage and the resulting losses[ii].

In an action for damage to a fence, the burden of proof is upon the plaintiff.  A plaintiff must prove a defendant’s negligence by preponderance of evidence[iii].  The establishment of preponderance of evidence will be sufficient to impose a statutory penalty in a civil action for an injury to a fence.  A plaintiff need not prove negligence of a defendant beyond reasonable doubt to get damages[iv].

On proof of damage, a defendant will be made liable for:

• damages for replacement or repair of a fence; and
• damage or loss that is a direct consequence of an injurious act.

The proper measure for calculating damages is to calculate the restoration cost.  Restoration cost means the cost that will be incurred to bring a property to its original condition.  Restoration costs must be shown with reasonable certainty.  Restoration costs should not exceed the value of actual damage sustained by a plaintiff[v].  But if damage is caused intentionally, then a defendant will be made liable for an amount that is in excess of the actual injury.  Sometimes courts will deduct the depreciation value of a fence from the cost of constructing a new fence.

While awarding damages for an injury caused to a fence, a court will consider the following factors:

• cost of repairing a fence;
• cost of rebuilding a fence or replacing it with a new fence with the same material;
• cost of returning a property to its prior condition; and
• reasonable value of the fence at the time of injury.

Apart from damages, an injunction can also be awarded to prevent unauthorized destruction of fences[vi].  In order to obtain an injunction order, irreparable harm must be shown.  Generally, an injunction is awarded in the following situations:

• where a neighbor is required to move a fence that encroached into an adjacent owner’s property[vii].
• where a fence prevented an adjacent landowner from using a road which was the only access to his/her property.

[i] Dalton v. Commonwealth, 14 Va. App. 544 (Va. Ct. App. 1992).

[ii] Hanks v. Entergy Corp., 944 So. 2d 564 (La. Dec. 18, 2006).

[iii] Pafford v. Sec’y of the HHS, 64 Fed. Cl. 19 (Fed. Cl. 2005).

[iv] United States v. McKenzie, 35 F. 826, 827 (D. Cal. 1887).

[v] Keyes Co. v. Shea, 372 So. 2d 493 (Fla. Dist. Ct. App. 4th Dist. 1979).

[vi] Boyd v. Roberts, 98 Ark. App. 385 (Ark. Ct. App. 2007).

[vii] Graven v. Backus, 163 N.W.2d 320 (N.D. 1968).