Tuesday, January 22, 2013
Is your fence law as out of date as fences?Tweet
Since 1950 livestock production has experienced many dynamic changes. Cattle production increased, and then declined to the point we have about the same number of cattle in the US as were being counted in 1950. Pastures have been converted to row crop production. Pork production has shifted from pasture to confinement. And the number of farms raising livestock has declined substantially. With all of those changes, have the fence laws in your state kept up to date, or are they way out of date?
Taking Illinois as an example, a 200-year old fence law might be seen as quite flexible and applicable to 21st century agriculture, or it might seem out of date. That spurred University of Illinois agriculture law specialists Bryan Endres and Lisa Schlessinger to question if the current law should be updated, a question that may be asked in many other Cornbelt state. After Illinois became a state in 1818, one of the first laws passed by the General Assembly was the Illinois Fence Law. It was an important piece of legislation designed to keep livestock where they belonged, or keep someone else’s livestock out of your cornfield. It either provided containment or protection.
And the law said that adjoining property owners should share in the cost of the fence equally. But that was in a day when cows, sheep, and hogs needed to be kept home, and over 60 years ago the number of livestock in Illinois began to rapidly decline.
Today, your familiarity with a fence may be limited to a municipal code about putting up a barrier around your swimming pool. Subsequently, the Illinois Fence Law that has been tested for nearly two centuries may need some updating. After all why should 77% of Illinois farms without any livestock have to share the cost of putting up a fence to aid the 23% of farms which have livestock?
Endres and Schlessinger report fence law has its origins in English Common Law that required the owner of livestock to keep them “fenced-in.” But problems eventually occurred when the property owner who did not spend the money to put up the fence got some livestock of his own, and used his neighbor’s fence to restrict their movement. When you have neighbors all around you with fences, then you have no fence expense.
The corollary to that is fencing out, which is building a fence to keep someone else’s livestock off your land. That is a popular concept in western states, where division fences were built to protect your land, from someone else’s free range cattle. While that issue is pertinent in some states, it will not work in all, where livestock do not need to roam and may have adequate pasture in smaller acreage.
Endres and Schlessinger report in their state of Illinois, if adjacent landowners cannot agree on splitting the cost of a fence, the law provides for the appointment of a disinterested third party—“a fence viewer”—who has the power to allocate the costs. And as recently as 1995 that concept was upheld by an appellate court. The court said the legislature has had 180 years to say each property owner pays half—but instead retained the law as saying each property owner should pay—what is termed—“just proportion”—and that can mean any percentage from zero to one hundred.
The agriculture law specialists have been looking at ways to make the Illinois Fence Law more fair and point to the Missouri law, which has evolved several times over the past 200 years, and has held up in a state which is the second largest livestock producing state in the US. The most current version of that law has the first livestock owner paying for a fence to keep his livestock in, but if a second adjacent landowner begins raising livestock, he is required to pay for half of the cost of the fence. And if they want a more expensive fence, then that is up to the second landowner.
"Good fences make good neighbors"
To help understand the impact of the law, the U of I ag law specialists say imagine a world without fences. The livestock owner would benefit from his animals grazing on someone else’s property. And the property owner without livestock would not get to enjoy his property due to the damage of someone else’s livestock. They conclude that a hybrid method of cost sharing would be the most equitable.
Such a hybrid would have adjacent livestock owners share the cost of the fence equally as current Illinois law holds. But if only one land owner had livestock, he would pay the full cost of the fence. But if the second owner began raising livestock, that person would pay half the cost, and also assume half of the maintenance.
Their analysis of current laws in Illinois cause one to wonder how fence laws in other states are structured and if they have kept up with modern day livestock dynamics. A fence may be horse high, steer strong, and hog tight, but without livestock around it does not do much to control corn pollen from one field to the next.
With changes in livestock production over the past few decades, many state fence laws may be out of date, and need either wholesale revision or only minor modification. Laws that call upon adjacent landowners to share the cost of the fence may be penalizing one landowner who has no livestock and no plans to use a fence. However some livestock owners still need fences, and laws need to be updated to accommodate those needs, which are growing rarer.
Posted by Stu Ellis on 01/22 at 10:02 PM | Permalink