A fence is an enclosing structure, composed of any material which will present a sufficient obstruction, about a field or other space intended to prevent intrusion from without or straying from within[i]. The construction and maintenance of a partition fence is compulsory as to the respective owners of adjoining lands from which each derives any revenue or benefit, when they cannot agree upon the portion of partition fences between their lands which shall be erected and maintained by each. It is the only distinction between the common law and the statute in relation to partition fences, except that, if there is no partition fence, and the line thereof has not been assigned either by the fence viewers or by agreement of parties, any animal trespassing across such partition line shall not be distrained, nor shall there be any liability therefor[ii].
In order to give a person reasonable notice of the location of the boundaries, it is not required that there be no open interval in the boundary lines, provided that it is reasonably clear from the adjacent visible boundaries, approximately where the boundary line runs across the interval. If such an interval in the boundary lines of a tract of land would prevent the tract from being an “enclosure,” then a tract with a level driveway into it, but entirely enclosed elsewhere, would be an enclosure, only if there is a gate across the driveway. In order to be an “enclosure”, a piece of land need not be surrounded by barriers of a sort to keep dogs in, if they wish to go through them. The degree of care exercised by the owner to keep his/her dog inside his/her premises has no bearing on the question of his/her legal liability. The nature of the owner’s liability is dependent upon whether the injured person had reasonable notice that s/he is entering within the boundaries of occupied land, where a dog might be kept by the occupant[iii].
Generally, a partition fence is located on the dividing line between the properties of adjacent landowners. Once its location has been determined, three separate methods establish a partition fence as a matter of law:
- by a written agreement of the adjoining landowners;
- by adverse possession or prescription; or
- by statute[iv].
An individual may build a fence upon his/her own land as high as s/he pleases, even though it obstructs his/her neighbor’s lights. The weight of authority is that his/her motives in so doing cannot be inquired into, even if the fence is built expressly to annoy his/her neighbor. In this particular respect, the law takes no account of the selfishness or malevolence of individual proprietors, although there are many strong intimations to the contrary[v]. If the need is obvious, it becomes a part of the duty in exercising reasonable care for safety to provide fences or barriers, the adequacy of which is dependent on the circumstances[vi].
Some state statutes declare the general duty to maintain a partition fence. Such statutes provide that the occupants of adjoining lands enclosed with fences shall maintain partition fences in equal shares between their enclosures, so long as both of them improve the same[vii].
[i] Kitrell v. Board of Adjustment, 201 Neb. 130 (Neb. 1978).
[ii] Osgood v. Names, 191 Iowa 1227 (Iowa 1921).
[iii] Wilbur v. Gross, 55 R.I. 473 (R.I. 1936).
[iv] Hickory Grove Golf Club v. Hedrick, 2003 Ohio 4031 (Ohio Ct. App., Ashtabula County July 25, 2003).
[v] Camfield v. United States, 167 U.S. 518 (U.S. 1897).
[vi] Lynn v. Wheeler, 260 N.C. 658 (N.C. 1963).
[vii] Butman v. Fence Viewers of Chelsea, 327 Mass. 386 (Mass. 1951).