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Don't fence me in

In 1945, Gene Autry had a number one hit song with "Don't Fence Me In." That was before my time, but my dad loved that song. It fits with my topic for the day--Kansas fence laws.

Fences are one of those things that can cause disagreements and unfortunately, even lawsuits. Awhile back, a gentleman from out of our county called me about another question and asked if I would write about fence laws some time. So, here goes.

Most of this comes from a publication that former K-State ag law specialist, Roger McEowen wrote. He is now at Iowa State University.

What is a legal fence? The definition has changed over time but was clarified in 1986 by the Kansas Legislature. A legal fence can be made of a number of different kinds of materials from post and rails to stone or even a hedge, but we will be reviewing the more common fences in our state, which are barbed wire and electrical.

The minimum legal barbed wire fence is:

--Not less than three wires;

--The third wire from the ground not less than 44 inches nor more than 48 inches from the ground;

--The bottom wire not more than 24 nor less than 18 inches from the ground;

--The center wire equal-distance, or nearly so, between upper and lower wires;

--The wires to be well stretched and barbed;

--The barbed wire shall be composed of two wires not smaller than #13 or one wire not smaller than #9 or wires having not less than 950 pounds breaking strength

--All wires to be securely fastened to post;

--Posts are not more than two rods apart;

--Posts are not less than 20 inches in the ground and set in a workmanlike manner; and

--The posts may be not more than 48 feet apart, with slats placed perpendicularly, not more than 12 feet apart between the posts and fastened to the wires.

For an electric fence to be a legal fence, the fence must meet the following qualifications:

--An electrically charged wire;

--At least one 14 gauge wire or its equivalent; and

--The wire not more than 48 inches from the ground.

In general, the owners of adjoining lands are required to build and maintain in good repair all partition fences in equal shares, unless the parties agree otherwise.1 In practice, however, many adjoining landowners adopt the right-hand or left-hand rule as they face each other at the mid-point of their fence and agree to build and/or maintain the portion of the fence to either their respective right or left. But in Kansas, the law states that building and maintenance is to be in equal shares rather than in halves.

Fence laws vary greatly from state to state. Kansas is a fence-in jurisdiction. That means that livestock owners are required to fence their animals in. But, as stated above, state law requires that the owners of adjoining lands build and maintain in good repair all partition fences in equal shares. That sometimes creates problems when a livestock owner shares a partition fence with a crop farmer or other landowner who does not graze livestock and, hence, has no need for a fence. In addition, if the adjacent non-livestock owners do not participate in the maintenance of their share of the partition fence, and injury results to them because of the defective fence that they were required to maintain, they cannot recover for damages caused by the adjacent landowner's stock.

Also, a non-livestock owner will be held liable to others who are damaged by the neighbor's livestock escaping through the defective partition fence.

Kansas law does indeed provide that if non-livestock owners do not want their land enclosed, they cannot be forced to build or pay for an equal share of any partition fence.

The statute states: No person not wishing his land enclosed, and not occupying or using it otherwise than in common, shall be compelled to contribute to erect or maintain any fence dividing between his land and that of an adjacent owner; but when he encloses or uses his land otherwise than in common, he shall contribute to the partition fence.

By its language, two conditions must be satisfied before the statute applies. One party must not want their land enclosed, and the adjoining tracts must be used in common. Unfenced tracts are not used in common when they are used for different purposes (i.e., crop raising and cattle grazing). Thus, when a crop farmer (or other non-livestock owner) adjoins a livestock owner, both adjoining landowners must contribute an equal share to the building or maintaining of a partition fence because the tracts are not used in common. While K.S.A. 29-309 has never been interpreted by an appellate court in Kansas, the Kansas attorney has twice opined that the statute applies only to relieve a landowner from responsibility for sharing equally the cost of building and maintaining partition fences when the land is used in common and the complaining party does not want the fence.

My best advice is to keep good fences and work hard to get along with your neighbors. Do more than your share and feel good about it.

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