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.
