A fence is an enclosure creating an adequate blockade around a particular land for the purpose of prohibiting intrusions from outside. A landowner can remove a fence, separating his/her land from that of his/her neighbor, when such fence is located wholly upon his/her own land. However, a landowner is not empowered to remove a partition fence without the adjacent landowner’s consent. A partition fence is the joint property of adjacent landowners.
A fence erected on the line between the lands of adjoining owners generally belongs to the parties as tenants in common. Generally, a partition fence is built equally on both sides of the line. Until the contrary is shown, the partition fence is presumed to be the common property of both owners. An owner of adjoining land can remove a partition fence upon formal notice to adjacent landowners.
For an improper removal of a partition fence, an aggrieved party can bring an action for damages. The standard for measuring damages for such removal or destruction is its value at the time. The value is determined by replacement costs minus depreciation for age and use. Moreover, when someone builds a fence on another person’s land without any authority to do so, the landowner can remove or destroy such fence. A person is liable for removing, destroying, or injuring a fence belonging to another person just as one who commits such acts against any kind of property belonging to another is liable[i]. Such person is considered a tortfeasor. However, an individual cannot remove or destroy a fence on another individual’s land without his/her consent.
The construction of a fence into a street or highway is considered a nuisance. The public authority is empowered to remove fences encroaching a public street or highway[ii]. A private individual cannot claim damages from the authorities for removal of encroached fence. However, for negligent action on the part of the public authority, s/he can sue for damages.
Additionally, in determining the amount of compensation for the taking of land in order to widen a street, injuries to fences have been considered as a proper element of damages. Fences are a part of the realty and become affixed to the land. Fences are not transitory, as personal estate. Fences pass by a sale of the land as the soil[iii].
The location of a fence determines the jurisdiction of the court to determine the dispute. In civil actions, the burden is upon the plaintiff, to prove the removal or damages. The plaintiff must prove the defendant’s negligence by a preponderance of evidence[iv]. The destruction of a fence during the trial gives rise to a presumption against the party who destroyed the fence.
In deciding the amount of damages, the court must consider:
- the cost of repairing the fence;
- the cost of rebuilding the fence;
- the cost for replacing the fence with a new fence;
- the cost of returning the property to the condition it was in before the damage; or
- the reasonable value of the fence as an enclosure at the time of its removal.
However in calculating damages, the depreciation which the old fence had suffered due to age and use can be deducted. Moreover, the defendant is liable for damage or loss which is the direct, proximate, and necessary consequence of his/her act[v].
Moreover, the court can award punitive damages for wrongful destruction or removal of a fence. Elements allowing punitive damages are[vi]:
- a wrongful act;
- intentionally performance;
- gross disregard of rights; and
Generally, equitable principles and rules are applicable concerning the protection of rights and interests in partition walls[vii].
In a suit for damages for removal of fences, courts grant injunctions:
- to prevent the unauthorized destruction of, or damage to, boundary line fences; and
- to order the adjacent owner to remove a fence which prevents him from using a road which provides access to the property.
Some statutes award criminal penalties on individuals who unlawfully fence the land of another. In a prosecution for removing, destroying, or injuring a fence, the burden rests upon the state to prove the offense. In State v. Roberts, the court observed that “persons unlawfully and willfully, burning; destroying; pulling down; injuring; or removing any fence, wall, or other enclosure shall be guilty of a misdemeanor”[viii].
[i] Hill v. Tohill, 225 Ill. 384, 393 (Ill. 1907.
[ii] Trust v. Allamakee County Bd. of Supervisors, 599 N.W.2d 460 (Iowa 1999).
[iii] Stoner v. Hunsicker, 47 Pa. 514, 515 (Pa. 1864).
[iv] Miller v. Leonard, 588 So. 2d 79, 81 (La. 1991).
[v] Sanders v. Lefkovitz, 292 S.W. 596, 598 (Tex. Civ. App. 1927).
[vi] Milner Hotels, Inc. v. Brent, 207 Miss. 892, 899 (Miss. 1949).
[vii] Andres v. Todd, 296 S.W.2d 139, 143 (Mo. Ct. App. 1956).
[viii] 101 N.C. 744 (N.C. 1888).