There are two basic theories or types of fence laws: (1) fence-out (meaning it is a property owner’s duty to protect their land from livestock) and (2) fence-in (meaning it is a livestock owner’s duty to keep their livestock fenced in and restricted from trespassing onto another person’s property). Kansas is a fence-in state; therefore, this article will be discussing fence-in laws.
What is a legal fence?
Partition Fences and Boundary by Acquiescence
A partition fence may be located on the property line of a tract of land.
If a partition fence is not located on the property line, the erroneously located partition fence may become the true property boundary after a statutorily specified number of years of acquiescence.
In Kansas, if a fence is not on the actual property line, but has been in place for a long enough time, and the adjacent landowners have come to believe that the fence marks the boundary, then the fence may become the actual boundary regardless of what a deed or survey says.
There are two ways of getting to this logical conclusion:
(1) Adverse Possession and
(2) Doctrine of practical location.
With adverse possession, a landowner may acquire title to property by making an open and notorious use of the property for 15 years.
An example of this is when adjoining landowners know the fence between their properties is not the true boundary, but do know where the actual boundary is located and one party is benefitted by the misplaced fence, but the other party doesn’t take any action to remedy the problem within the 15 years.
Under the doctrine of practical location, the parties know the fence is not the boundary, but do not know where the actual boundary line is, and the parties use the fence as the boundary for 15 years.
Fence Maintenance and Construction
Generally, adjacent landowners are required to build and maintain all partition fences in equal shares, unless they agree otherwise (if there is another agreement, it should be a written agreement to avoid disputes). This allows an adjacent landowner the ability to lawfully enter onto the other landowner’s property at reasonable times and in a reasonable manner to maintain the fence. Many farmers and ranchers adopt the common “right-hand rule” (each adjoining landowner meets in the middle of the fence facing each other and they maintain the stretch of fence to either’s right), however, the law does not adopt the “right-hand rule”, but rather says adjacent landowners shall maintain the fence in equal shares.
The rule of maintenance in equal shares raises another issue: if an adjacent non-livestock owner does not need or want to contribute to the fence, are they required to contribute to the fence’s construction and maintenance? K.S.A. 29-309 provides that:
“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. . .”
This means that if a non-livestock owner does not want their land enclosed, they cannot be forced to build or pay for an equal share of any partition fence. For this statute to apply, there must be two conditions met. (1) one party must not want their land enclosed and (2) the adjoining tracts must be used in common. Unfenced tracts are used in common when they are used for the same purposes (i.e. cattle grazing vs. crop raising). Therefore, when land used for crop-farming adjoins land used for cattle grazing, the crop-farmer will be required to contribute in equal shares to the building and maintaining of a partition fence. There has not been a constitutional challenge to this requirement of the statute in the State of Kansas.
If an adjoining landowner does not participate in the maintenance and construction of a partition fence in equal shares, the non-participating landowner cannot recover for damages caused by an adjacent landowner’s stock in the event the injury results because of the defective fence they were required to maintain. The non-participating landowner will also be held liable to others who are damaged by their neighbor’s livestock escaping through the defective part of the fence the non-livestock owner is required to maintain.
If livestock escape through an owner’s faulty fence, the owner is liable for any resulting damages. However, if the fence is in good shape, the livestock owner is generally not liable absent a showing of negligence. Examples of negligence might include gates being left open, knowing a stronger fence was needed, knowledge that an animal was outside the fence and no effort to return the animal, improper maintenance or construction of a fence, and knowledge that animals in heat might require a stronger fence.
If a male animal escapes through or over a fence and breeds female animals, the owner of the male animal is generally responsible for the damages caused unless a deficient fence maintained by the complaining party was a factor in the matter. The measure of damages is usually calculated as the value of the female and their offspring if bred to a male of their own station in life compared to the value as bred to male animals in question.
These are just a few of the issues related to Kansas fence law and are intended to provide an overview of the subject. It would be wise to reach out to an attorney to determine specific issues and how the law applies.
Disclaimer: The information in this article is intended for general informational purposes only. This information is not intended to be, nor should be interpreted as, legal advice or a legal opinion. The reader should not consider this information to be an invitation to an attorney-client relationship, should not rely on the information presented here for any purpose, and should always seek the legal advice of counsel in the appropriate jurisdiction.