A fence is defined as an enclosing structure composed of any material which will present a sufficient obstruction intended to prevent intrusion from without or straying from within[i]. It is to be noted that criminal liability is imposed by certain statutes for the wrongful removal or destruction or injury to a fence under some jurisdictions.
Under a statute, it is unlawful to injure a fence enclosing land and amounts to a felony. Similarly, a person who willfully commits any trespass, by opening, tearing down, or destroying any fence in any other way on the enclosed land of another without the permission of the owner is guilty of a misdemeanor[ii]. Likewise, if any person unlawfully burns, destroys, or removes any fence, wall, or other enclosure, any yard, garden, or cultivated grounds, then s/he will be deemed guilty of a misdemeanor[iii].
However, the mere act of tearing down a fence is not necessarily malicious or wanton[iv]. It may be done in the honest exercise of a right. To be guilty of the offense of wanton and willful cutting, injuring, or destroying fences, the party must wantonly, or with intent to injure the owner, and willfully cut, injure, or destroy a fence. The penalty for this offense is confinement in the penitentiary for such years prescribed by the statute[v].
It is to be noted that breaking, pulling down, or injuring the fence of another, without the owner’s consent is punished by fine under some statutes[vi]. It was observed that a landowner who has not enclosed his/her land with lawful fences cannot recover for incursions of stock[vii]. It is to be noted that removing or damaging a fence can also be punishable under statutes creating the offense of criminal or malicious mischief. It can be seen that some statutes make pulling down or removing any fence or enclosure as criminal and such acts need not be willful[viii].
[i] Kitrell v. Board of Adjustment, 201 Neb. 130 (Neb. 1978).
[ii] State v. Jacobson, 55 Idaho 711 (Idaho 1935).
[iii] State v. Allen, 35 N.C. 36 (N.C. 1851).
[iv] Rosenberg v. State, 164 Md. 473 (Md. 1933).
[v] Roberts v. State, 17 Tex. Ct. App. 148 (Tex. Crim. App. 1884).
[vii] State v. Prater, 130 Mo. App. 348 (Mo. Ct. App. 1908).
[viii] Woods v. State, 10 Ga. App. 476 (Ga. Ct. App. 1912).