St Croix River Road Ramblings

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Wednesday, April 18, 2012

Good Fences Make Good Neighbors


  In farming country where folks own large  blocks of land, pasture cattle and have fields with crops, fences can be a problem.   My neighbor and I are in such a problem right now. 

   Fence law is well defined in Wisconsin law.   Two adjacent land owners must maintain a fence between them if either of both have cattle to pasture.  Each land owner is responsible for half of the fence line.  Normally, you face the fence from your side, looking to the neighbor’s land and your half is the right hand side.  Of course, neighbors can and do make agreements to switch sides if they want to.

   The division of the fence between neighbors is normally measured off to be half for each person.  Neighbors do the measuring and agree if at all possible, although there are laws and Town "fence viewers" who can be called upon for help (at a cost).

   Fence law says even if you don’t plan to pasture your land, you must maintain a legal fence if the neighbor intends to pasture his land.   If you don’t put in your half, the neighbor can complain to the Town Board and have them appoint fence viewers and notify the person that he must put in the fence.  If he doesn’t do his share, then they can hire a fence put in and charge it to the person not putting in his share. 

  When you buy a parcel of land that is fenced around the boundary, the fence lines have legal status.  In my case, a person bought the land adjacent to my land from the farmer who had owned it for 40 years.  Neither of us had pastured our land for 15 or more years.  When neither person pastures the farm, and a fence is not needed, law states that the fence does not have to be maintained.  Only if one or both plan to pasture land does the fence need to be maintained.

   Robert Frost wrote in his poem “Mending Walls” that, although the old stone wall between him and his neighbor was no longer needed, each year the neighbor asked Frost to come to the wall and repair it stating “Good fences make good neighbors.” He likely felt that keeping the boundary intact between him and his neighbor, and visiting with him each year, would prevent boundary disputes like the one I am in. 

    Fences serve another important purpose.  Those on the property lines, called “line fences” establish legal boundaries of the properties.  A fence that is shared between neighbors, and has been put in in agreement that the line is the land boundary, becomes the land boundary whether or not it is exactly on the “true” property line or not. 

    My new neighbor bought the adjacent farmland from our old neighbor.  My family bought our side in 1963 from the family who had lived there since the 1880s.  A few years later, the farmer across the fence died and his farm was bought.  About 40 years ago, when both “new” owners were pasturing each side, the two farmers met at the fence line and decided it was in need of repair or replacement. The fence division into two halves had been long established by the previous owners and was kept the same. 

   The farm boundary consisted of five distinct fences, forming a boundary as illustrated in the sketch.  Dad and his 4 boys cleared out the brush and old fence of wood posts and badly rusted barb wire and replaced it all with steel posts and new barbed wire.  The neighbor replaced his side too and for the next 15 years the cattle stayed in their pastures.  Then both got rid of their cattle and the fences began to deteriorate with trees falling on the wires and grass growing over them and pulling them down to the ground, leaving a cattle porous fence!

   The proper way, in the country, to approach a fence line, is for the landowners to meet, discuss the need for fixing it, and agree to do it by a given date.  A farmer/landowner knows his responsibility and takes it seriously if he wants to have the respect of his neighbors, so fixes his fence when told it is needed.  As the land ownership actually has changed along the boundary fence, it is important to re-establish the sharing of the fence line and midpoint changes if needed.  In our case, I had sold 10 acres that covered the first two of the five fences to my nephew, so he and his neighbor now have to split that piece in half and me and the new owner, our combined fence line of 3 parts.  This is done by meeting, discussing, possibly talking to old owners and agreeing on each person’s responsibility. 

    Well, this spring I got a call from my nephew who had bought 10 acres from me.  “Are you doing some fencing along our boundary?” he asked.  “No, nothing at all,” I replied.  “Well, someone has some survey markers and put new corner posts on my side, way out from the old fence line.  He has done it on your boundary too—all the fence lines are quite different from the old ones. 

    We visited our neighbor, who we found out had sold it to another person nearly 2 years earlier.  He didn’t know anything about what was happening.  We drove to the new owner’s home, also a neighbor we don’t know yet, and as no one was home, I left a note asking what was happening and a printout from a Wisconsin Legal advice firm stating that boundary fences of 20 years or more standing were considered legal boundaries even if a new survey showed them off the boundary.  State law has this provision because each time a survey is done, it has the possibility of coming out differently than the old one, especially as modern technology allows surveyors to get more precise.  Without this law, farmers would be forced to move fences back and forth every time a survey was done that showed a change—which almost every one does nowadays, especially when the original surveys were done in the 1840s-1880s, as they were on this boundary. 

   When boundary surveys are done between neighbors, the best practice is for the neighbors to discuss the reason for the survey, agree to share the cost so the surveyor will not be biased in favor of one person, and agree that they will abide by the new survey line rather than the old line fence, which under WI law, does have precedence over any new survey if one of the land owners chooses to use the existing boundary fence rather than the results of a survey.

    Most farmers don’t want to pay for a survey if there is a long established fence boundary, so just agree to repair or replace the existing fence line rather than start all over.  In the case of the survey done by our neighbor, most of the boundaries shifted, some to give me more land and some to give him more land.  However, much of the fence would have to be moved.  I would have to build a new fence rather than just cutting some trees and brush and reattaching and stretching the old wires that are usable and replacing those that aren’t. 

    So, I am in a dispute with the neighbor.  I have insisted we meet at the fence, talk over the survey—only after I have a copy that shows it is legitimate, divide the fence ownership (find the midpoint) and in general make an agreement that we both will live with.

   The neighbor’s view is that
1.       He had it surveyed and that is the line regardless of the existing boundary fence.
2.      He had planned to put in the whole fence himself so I shouldn’t be concerned at all.
3.      He didn’t need to consult me on this—it was his right to just re-establish boundaries and put in a fence. 

    My point of view:
1.      All boundary fence issues are well laid out in law, and changing a boundary fence of over 20 years existence is not something you want to try without an agreement by your neighbor.  The law is that of adverse possession—use land as if it were yours for 20 years or more and it is—and thus boundaries of 20 years or more supercede surveys.
2.      Boundary fences are responsibilities of both landowners.  Each has obligations and should meet them (I should do my half of the fence).
3.      Dividing a fence is a necessary step in any fence line.  This has to be done.

    My general view is that if he would have talked to me in advance, I would have shared the cost of the surveyor if we had deemed it necessary; we would have agreed on how to proceed on the fencing and we would be getting along as good neighbors.  However, the shock of finding substantial corner posts stuck in land 25 feet away from a 150 year old boundary fence perturbed me more than I like being perturbed. 
    If the neighbor apologizes for not consulting me, and shows me the survey papers and details, and they are legitimate, I will most likely accept the new boundaries, re-divide the fence with him and do my half.  However, I think he needs to learn that it is important to work with your neighbor, and  I intend to press that point.