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Enforcement of Regulations

The building and maintenance of partition fences are generally shared by the adjoining land owners or occupants.  In some states, statutes prescribe the rules and regulations for building and maintaining fences.  However, in some states it is regulated by prescription or by agreement.  Where there is no prescription, agreement, or assignment, an occupant is not obliged to fence against an adjoining close.[i]

A landowner is not obliged to build a fence under common law.  However, a land owner and an adjoining owner can enter into an agreement regarding the construction and maintenance of a fence.  When there exist an agreement, the parties must oblige the rules and regulations set out in the agreement.  In case of breach, a landowner can enforce the agreement against an adjoining owner[ii].  An aggrieved landowner can seek two types of remedies:

  • suit for damages; and
  • action for breach of contract.

Some statutes impose a duty on landowners to build, maintain, or share expenses for a partition fence.  In the case of a refusal on the part of an adjoining land owner, the other land owner can build or repair the fence himself/herself.  The landowner building a fence can recover the cost or value of the portion so built or repaired from the defaulting landowner[iii].  The landowner building or maintaining a fence by himself/herself can recover for the cost through action:

  • before fence viewers;
  • before a town board of trustees: or
  • before a civil court.

A landowner, who erected or maintained the fence, must approach fence viewers or the town board of trustees before filing a motion before a civil court.  The arbitrary and equitable decision of the fence viewers and the town board are considered final.  In such suit, the land owner can recover double the amount s/he spend in erecting or maintaining the fence.  However, the plaintiff in the civil action must prove that the fence completely surrounds the adjoining landowner’s property.  When an existing dividing fence is out of repair and the share of each therein never has been adjusted, the purpose of a decision of the fence viewers is to fix the share of each adjoining landowner.  Moreover, the fence viewers set out the specific part which each party is to keep up and maintain[iv].  However, a person required by law to build a part of a division fence must first be given an opportunity to build it himself/herself[v].

Fence viewers are officers that settle disputes involving partition or division fences in a peaceful and speedy manner.  The officers comprise of a board of limited jurisdiction to settle fences dispute.  The selection of the board differs from state to state.  Generally, local officials of the district are designated ex officio fence viewers.  The local officials include town trustees, town assessors, town selectmen, highway commissioners, and county commissioners.  The fence viewers act according to the statute appointing them.  The power and duties of fence viewers are quasi judicial in nature[vi].

Fence viewer’s powers include:

  • power to prescribe the location of a partition or division fence;
  • power  to divide and assign to the adjoining landowners the respective portions of the power to partition fence to be built or maintained by them;
  • power to determine the value of a fence;
  • power to proportion the amount to be paid by each adjoining owner; and
  • power to decide the proportion of the division fence to be made and maintained by each owner.

An arbitrary and inequitable decision from the fence viewers is subject to judicial review.

[i] Little v. Lathrop, 5 Me. 356 (Me. 1828).

[ii] Dixon v. District Grand Lodge, I. O. O. F., 174 N.C. 139 (N.C. 1917).

[iii] Griffith v. Carrothers, 86 Kan. 93, 95 (Kan. 1911).

[iv] Longfellow v. Sayler, 737 N.W.2d 148, 153 (Iowa 2007).

[v] Holly Hill Farm Corp. v. Rowe, 241 Va. 425 (Va. 1991).

[vi] Deane v. Garniss, 294 Mass. 221, 224 (Mass. 1936).


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